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Boardsmanship in the Age of Social Media & Electronic Communication Rick Boothby, Esq. Rebecca Tinder, Esq. WVSBA at Stonewall Resort November 8, 2014 Slide 2 2 We speak in general terms today. The specific facts of each situation can make a difference in the legal principles that apply. This presentation must not be treated as legal advice about any specific situation. Due to the rapidly changing nature of the law, information in this presentation may become outdated. When in doubt, dont act or rely upon the information contained in this presentation without seeking legal advice. A word about this presentation Slide 3 Copyright 20103 The Education Law Group at Bowles Rice Adjunct Attorneys Mark Adkins Construction Litigation Bob Bays - Eminent Domain Aaron Boone Civil Litigation Joe Caltrider Personal Injury Defense Mark DAntoni Real Estate Mark Dellinger Human Rights Kit Francis Creditors Rights Jill Hall - Employee Benefits & Obamacare Roger Hanshaw Parliamentary Procedures Justin Harrison ADA and Employee Leave Tom Heywood Legislative Matters Bob Kent - Personal Injury Defense Leonard Knee Environmental Law Ellen Maxwell-Hoffman Ethics Steve Prunty - Easements Marion Ray - Workers Compensation Cam Siegrist Bond Issues and Finance Ken Webb - Construction Litigation Leaders of the Group Greg Bailey - Morgantown Rick Boothby - Parkersburg Howard Seufer - Charleston Rebecca Tinder - Charleston Kim Croyle - Morgantown Legal Assistants Sarah Plantz - Charleston Dianne Wolfe - Parkersburg Slide 4 Copyright 20104 Implications under The Open Governmental Proceedings Act Social Media & Electronic Communication Issues for School Board Members Maintaining a personal Facebook account that emphasizes your status as a county School Board Member Participating by telephone, Skype, FaceTime, or similar electronic media Use of electronic agendas and electronic attachments Facebook Electronic Communications Board Member Meeting Participation Board Meetings Generally Other questions we were asked to address ??????? Slide 5 Board Functions - examples (1) As a governmental unit, providing a proper framework and the governance strategies necessary to monitor and approve student achievement on a continuing basis, such that the general public can see and/or hear what it is working on; and (2) Acting as an adjudicatory body for students and employees in a manner that is fair and unbiased. 5 Slide 6 Board Functions - examples (1) Regular and Special Board Meetings; and (2) Hearings. 6 Slide 7 Board Functions - examples (1) In compliance with the Open Governmental Proceedings Act; and (2) In compliance with all laws and policies. 7 Slide 8 8 Is it a meeting if were not all in a room together? Can we meet electronically? What is a meeting? Slide 9 Social Media & The Open Meetings Act Open Meetings Act "Meeting" means the convening of a governing body of a public agency for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter which results in an official action. Meetings may be held by telephone conference or other electronic means. 9 Slide 10 Social Media & The Open Meetings Act Open Meetings Act "Decision" means any determination, action, vote or final disposition of a motion, proposal, resolution, order, ordinance or measure on which a vote of the governing body is required at any meeting at which a quorum is present. 10 Slide 11 Board Member Meeting Participation Meeting participation by telephone and other electronic means 11 Slide 12 Board Member Meeting Participation Contemplated by the Open Meetings Act Four Basic Rules - Meetings by telephone and other electronic means: 1. The person participating by telephone is able to hear what is going on in the meeting; Open Meetings Advisory Opinion No. 99-08 12 Slide 13 Board Member Meeting Participation Meetings by telephone and other electronic means: 2.All persons who physically attend the meeting -- including the audience -- can hear what the person on the telephone says; Open Meetings Advisory Opinion No. 99-08 13 Slide 14 Board Member Meeting Participation Meetings by telephone and other electronic means: 3.The meeting otherwise complies with the Open Meetings Act; and Open Meetings Advisory Opinion No. 99-08 14 Slide 15 Electronic Communications & The Open Meetings Act Meetings by telephone and other electronic means: 4.The board has adopted a policy addressing how meetings will proceed when a member (or members) participates by telephone (or other electronic means) and the policy is followed. (suggested strongly) Open Meetings Advisory Opinion No. 99-08 and State ex rel Regional Jail and Correctional Facility Authority v. Cabell County Commission (WVSCA) 15 Slide 16 Electronic Communications & The Open Meetings Act Board Policy on Electronic Meeting Participation The Ethics Commission believes that the Legislature intended public bodies to adopt policies addressing how such meetings will proceed, covering issues such as: 1.verifying the identity of the telephone participants, 2.composition of the quorum, 3.compensation of telephone participants for attending the Board meeting, 4.Whether the Board president may preside by telephone, 5.Etc. 16 Slide 17 Electronic Communications & The Open Meetings Act Board Policy on Electronic Meeting Participation The Ethics Commission expressed no opinion on these kinds of procedural issues, believing them to be beyond the Commission's authority to impose. The West Virginia Supreme Court indicated in a decision that public bodies would be very wise to adopt a policy regarding this subject. (Though it is not expressly required by law.) 17 Slide 18 18 Social media is the social interaction among people in which they create, share or exchange information, ideas, and pictures/videos in virtual communities and networks. What about the use of Social Media? Slide 19 Social Media & The Open Meetings Act E.g. A private personal account where only close family & friends, those granted permission, can see your posts and respond A public account where the whole world can see your posts and respond Possible Prejudgment & Open Meetings Act Violations? 19 Slide 20 facebook Tom Jones, school board member WallPhotosNameLogout Wall InfoPhotos Information Info Photos Current City: Smithtown, Smith County, West Virginia Hometown: Treforest, Pontypridd, Glamorgan, Wales, Great Britain Sex: All Man ! Birthday: June 7, 1940 Relationship Status: Always looking ! Employer: Self-employed (entertainer) Education: School of Hard Knocks Community Activities: School Board Member, Smith County, West Virginia Contact Information Address: Smithtown, West Virginia, 26111 Phone: 304-555-5555 Email: tjones@smithcountyschools.org Wall Friends Slide 21 facebook Tom Jones, school board member WallPhotosTom JonesLogout Wall InfoPhotos School Board Meeting Tomorrow Night ! New school building location being considered. Please share your ideas. Update statusShare Info Friends Wall Friends Photos Sally Sue Simpson Why not tear down the old school and build the new one right there? Like Comment Tom Jones Im with you Sue. That sure seems like the way to go. Like Comment Sally Sue Simpson I like the way you think. Glad to finally have a board member who listens to the voters. Jill Jones Billy Budd Carl Convict Slide 22 facebook Tom Jones, school board member WallPhotosTom JonesLogout Wall InfoPhotos Update statusShare Info Friends Wall Friends Photos Tom Jones Oh Pipe Down Sam ! I have the right to express myself. Like Comment Tom Jones Happy to help as always Like Comment Sam Citizen WHY ARE YOU TALKING ABOUT THIS OUTSIDE OF A BOARD MEETING????!!!! Jill Jones Billy Budd Carl Convict School Board Meeting Tomorrow Night ! New school building location being considered. Please share your ideas. Slide 23 23 Does it matter who else can see this? Are there any other possible problems with this? Is this a Board Meeting? Slide 24 facebook Tom Jones, school board member WallPhotosTom JonesLogout Wall InfoPhotos Suspension hearing tomorrow for Coach Carl. Please share your opinions Update statusShare Info Friends Wall Friends Photos Sally Sue Simpson Fire the bum !!! Like Comment Tom Jones Im with you Sue. That sure seems like the way to go. Like Comment Sally Sue Simpson I like the way you think. Glad to finally have a board member who listens to the voters. Jill Jones Billy Budd Carl Convict Slide 25 facebook Tom Jones, school board member WallPhotosTom JonesLogout Wall InfoPhotos Update statusShare Info Friends Wall Friends Photos Tom Jones Oh Pipe Down Sam ! I have the right to express myself. Like Comment Tom Jones Happy to help as always Like Comment Sam Citizen WHY ARE YOU TALKING ABOUT THIS OUTSIDE OF A BOARD MEETING????!!!! Jill Jones Billy Budd Carl Convict Suspension hearing tomorrow for Coach Carl. Please share your opinions Slide 26 26 Does it matter who else can see this? Are there any other possible problems with this? Is this a Board Meeting? Slide 27 facebook Tom Jones, school board member WallPhotosTom JonesLogout Wall InfoPhotos Suspension hearing tomorrow for Principal Pete. Please share your opinions Update statusShare Info Friends Wall Friends Photos Jill Jones, school board member Principal Pete has always been a decent upstanding member of our community. He has my support. Like Comment Tom Jones Oh BIG SURPRISE ! Jill, you always support the employee no matter what the evidence is. Like Comment Jill Jones, school board member Thats not true and you know it, Tom ! Sally Sue Simpson Harry House Carl Convict Slide 28 facebook Tom Jones, school board member WallPhotosTom JonesLogout Wall InfoPhotos Update statusShare Info Friends Wall Friends Photos Jill Jones, school board member Oh Pipe Down, Sam ! We have the right to express ourselves ! Like Comment Billy Budd, school board member Right on Tom ! Like Comment Sam Citizen SHOULD ANY OF YOU BE TALKING ABOUT THIS OUTSIDE OF A BOARD MEETING????!!!! Sally Sue Simpson Harry House Carl Convict Suspension hearing tomorrow for Principal Pete. Please share your opinions Slide 29 29 Does it matter who else can see this? Are there any other possible problems with this? Is this a Board Meeting? Slide 30 Social Media & The Open Meetings Act Open Meetings Act Questions to Ask Was there a quorum present? Were these board members deliberating towards a decision ? - Is this a simple objective question that everyone will agree on? 30 Slide 31 Social Media & The Open Meetings Act Open Meetings Act What about just hitting the like button on a comment? Is that evidence of bias or prejudgment? 31 Slide 32 Electronic Communications & The Open Meetings Act Cell Phones Text Messages Emails Twitter 32 Slide 33 Electronic Communications & The Open Meetings Act Everyone uses email now. But among school board members... 33 Slide 34 Electronic Communications & The Open Meetings Act "Generally, written communications, including electronic mail or E-mail, should not be used to avoid public discussions that would ordinarily take place in the context of an open public meeting. Therefore, an exchange of E-mail communications among a quorum of a governing body which involves deliberating toward a decision on a matter requiring official action is not permitted by the Act." Open Meetings Advisory Opinion No. 2006-09. 34 Slide 35 Electronic Communications & The Open Meetings Act Cell phones are used everywhere... but during Board meetings? 35 Slide 36 Based upon the cited opinion and the plain language of the Open Meetings Act, the Committee finds that a quorum of a governing body, including a quorum of any committee or other sub-unit of a governing body, may not communicate via text messaging, instant messaging, email or any other form of electronic communications during the course of a meeting for the purpose of deliberating on a matter which will require official action. Open Meetings Advisory Opinion No. 2009-08 36 Electronic Communications & The Open Meetings Act Slide 37 This form of communication may not be used to avoid deliberations which the Open Meetings Act requires to take place in the context of an open meeting. Just as electronic communications may not be used to circumvent the Act outside of the meeting, the same rule of laws applies in regard to the use of electronic communications during the meeting. (emphasis added) Open Meetings Advisory Opinion No. 2009-08 37 Electronic Communications & The Open Meetings Act Slide 38 Use of electronic agendas and electronic attachments Board Meetings & Electronic Documents 38 Slide 39 Use of electronic agendas and electronic attachments If your board uses electronic agendas and agenda attachments, must it also provide paper copies to those who attend the meeting? 39 Slide 40 Use of electronic agendas and electronic attachments There are no Advisory Opinions on the use of electronic agendas and attachments. Best advice from the Ethics Commission (informal): 1.Make paper copies available at the meeting, or 2.Notice: paper copies available upon request (cumbersome). 3.Request an Advisory Opinion from the Ethics Commission about this 40 Slide 41 County information available to Board members Delegations & Open Hearings where students or other employees are discussed Inviting others into Executive Sessions Is it a meeting? Retreats, work sessions, public forums... 41Copyright 2010 Some Other Topics Slide 42 Information available to Board Members Board members seeking more information about the operations of the school system What school system records can board members see? 42 Slide 43 Information available to Board Members Best Practice: develop a policy that clarifies what documents will be shared and when and who is responsible for sending them 43 Slide 44 Information available to Board Members WV Code 18-5-14(a) ... each county board shall adopt... policies... that promote school board effectiveness... between the county board and its faculty senates for the purpose of enabling the county board to receive information, comments and suggestions directly from the... faculty senates regarding the broad guidelines for oversight procedures, standards of accountability and planning for future needs.... 44 Slide 45 Information available to Board Members WV Code 18-5-14 The policies shall address the following objectives:... using... performance data provided by the state board and other available data in county board decision making to meet the education goals of the state and other goals as the county board may establish. 45 Slide 46 Information available to Board Members WV Code 18-4-10 Superintendent has a duty to (4) Report promptly to the county board (9) Keep the county board apprised continuously of any issues that affect the county board or its schools, programs and initiatives...When practicable, the reports shall be fashioned to include a broad array of data and information that the county board may consult to aid in making decisions; 46 Slide 47 Information available to Board Members FOIA, WV Code 29B-1-1 et seq. Public records 47 Slide 48 Delegations and Open Hearings Delegations & Open Employee Hearings Must boards go into executive session if students names or employees names and personal information will be discussed? 48 Slide 49 Delegations & Executive Sessions 49 Generally -Agendas should not state that a matter will be heard in executive session -There is no legal reason to print executive session on a board agenda -Ok to indicate the board MAY go into executive session, but why do it? Advisory Opinion No. 2000-15 Slide 50 Delegations & Executive Sessions 50 Speakers/Delegations Should we tell speakers that they are not permitted to identify district employees or students by name ? Should we require them to speak in executive session if they insist on identifying district employees or students by name ? Slide 51 Executive Sessions Who is invited? Who is not (or should not be) invited? It depends on the situation: -Generally speaking -Superintendent Evaluations -Disciplinary Hearings 51 Slide 52 Executive Sessions State ex rel. Marshall County Commission v. Carter, No. 35272 (January 29, 2010). The provision of the Open Governmental Proceedings Act that recognizes a specific and limited right of governing bodies to meet in an executive session which is closed to the public is not intended to prevent the legitimate discovery in a civil action of matters discussed in an executive session which are not otherwise privileged. 52 Slide 53 Is it a meeting under the Open Meetings Act? -Retreats -Work sessions -Public forums/town meetings Are these meetings under the Open Meetings Act that have to be noticed like all other meetings? 53 Slide 54 Send an email to Sarah Plantz: splantz@bowlesrice.com Tell Sarah:.Who you are.Your position in public education.Your school boards name.That you want to receive the E- Newsletter Copyright 201054 E-Newsletter Mailing List Slide 55 55 Remaining Questions? Rick Boothby: rboothby@bowlesrice.com 304-420-5535 Rebecca Tinder: rtinder@bowlesrice.com 304-347-2132