Current Legal Issues for School Boards

Karen Haase Harding & Shultz

(402) 434-3000( )khaase@hslegalfirm.com

H & S School Law@KarenHaase

A School Board=s Legal AuthoritySources and Limitations

School Districts are “Creatures of Statute@

< What the Unicameral giveth, it t k thcan taketh away

< Individual board members have no authority

AThe school board is a public body empoweredThe school board is a public body empowered by law to transact the business of the school district for school purposes. The members act in a p prepresentative capacity, not as individuals.@ Arehart

v. School Dist. No. 8, 137 Neb. 369.

Board=s Duties< Statutory’ Provide school house’ Keep it in good condition’ Keep it in good condition ’ Keep accurate accounts

< Operationally ’ Establish policy’ Establish policy’ Employ all certificated staff’ Supervise the superintendent

Administrators= Duties

< Carry out board policy< Direct, supervise and evaluate staff< Oversee the operation of the school< Oversee the operation of the school in all areas

Open Meetings Actp g

Open Meetings Actp gSections 84-1408 to 84-1414

< The formation of public policy is public business and may not bepublic business and may not be conducted in secret.E i f bli b d h ll< Every meeting of a public body shall be open to the public in order that be ope to t e pub c o de t atcitizens may exercise their d ti i il f tt didemocratic privilege of attending and speaking. . .

What is a Meeting?g< All regular, special or called g , p

meetings, formal or informal, of any public body for the purpose of:any public body for the purpose of:’ Briefing (includes retreats)’ Discussion of public business’ Formation of tentative policy’ Formation of tentative policy’ Taking any action of public body

Publication Requirementsq<Must publicize all meetingsp g<Reasonable advance notice’Comfortable with 3 days’Comfortable with 3 days

<To public and board members by:’A method adopted by board and

recorded in minutesrecorded in minutes

Publication Requirements qDon=t Apply To

< Chance meetings< Attendance or travel to conventions or workshops of board members ator workshops of board members at which there is no board meeting i i ll dintentionally convened

Recommendations< Do minutes show the method the

board adopted to publish meetings?< Does your method always work?< Does your method always work?< Use a method the public can rely on:’ Posting at specified sites’ Posting on district web site’ Posting on district web site’ Publishing in newspaper can be

additional, when convenient

Talking Out of Schoolg f

Recommendations< Take care not to give appearance the g pp

board is Ameeting@ at the cafe or bar< Board members do not discuss< Board members B do not discuss

school business at the cafe or bar.< Tell patrons who want to talk about

school business Awe can only dealschool business B we can only deal with school business at board meetings. You should come.@

Emergency Meetings

Emergency Meetingsg y g< May hold without advance noticey< Formal action limited to emergency< Meeting may be by telephone< Meeting may be by telephone< News media must be contacted< Must prepare minutes by next day

Board Agendag

Board Agendag< Must publish:’ Agenda of subjects known or’ Statement that a copy of agenda is’ Statement that a copy of agenda is

available for inspection< Agenda items must be sufficiently

descriptive to give public reasonable desc pt ve to g ve pub c easo ab enotice of matters to be discussed

< Ma not amend /in 24 ho rs of mtg< May not amend w/in 24 hours of mtg.

Recommendations< Don=t be cryptic B err on the side of yp

expansiveness< Post or publish notice that a copy of< Post or publish notice that a copy of

the agenda, kept continuously current, is available for inspection at office during regular business hoursoffice during regular business hours

Closed or Executive Sessions

Closed Sessions< Board may hold closed session if:’ Clearly necessary for protection of

the public interest orthe public interest or ’ Prevention of needless injury to a

= t ti d thperson=s reputation and the person has not requested a public meetingq p g

Reasons For Closed Session< Strategy sessions re collective

b i i b i l dbargaining, buying real estate, and pending or threatened litigationpending or threatened litigation

< Deploying security devicesI ti ti di< Investigative proceedings re allegations of criminal conductg

< Evaluation of job performance (to t dl i j dprevent needless injury and person

has not requested public meeting)

Closed Session B Procedure< Motion must identify: ’ Subject matter’ Reason necessitating closed session’ Reason necessitating closed session

< Closed session restricted to purpose d i i d istated in motion and minutes

Closed Session B Procedure< Just before closed session, presiding

officer must restate purpose/limitation< Minutes must identify:< Minutes must identify: ’ Entire motion for closed session

V f h b d b’ Vote of each board member’ Time commenced and concluded

Reconvene B Formal Action<Board must reconvene before taking

any formal action<Formal action means a collective<Formal action means a collective

decision or a collective commitment or i t k d i ipromise to make a decision on any

question, motion, proposal, resolution, q , , p p , ,order, or ordinance or formation of a position or policyposition or policy

<Doesn‘t include negotiations guidance

Recommendations< Use closed sessions very sparinglyy p g y< Limit them to topic in the motion

Th i l l i t t< There is no legal requirement to keep closed sessions confidentialp’ Board members can be forced to tell what was said in closed sessiontell what was said in closed session

Board Minutes

Meeting Proceduresg< Majority constitutes quorum (4 of 6)Majority constitutes quorum (4 of 6)< President presides

M i O M i A’ Must point out Open Meetings Act postingpost g

’ Has authority to expelS t i l k f th b d< Secretary is clerk of the board

< Meetings open to publicg p p

Meeting Procedures< Patron participation’ B d t li it’ Board may set limits’ May require speakers to identify y q p y

themselves (but not attendees)’ Board does not have to allow’ Board does not have to allow

people to speak at every meetingp p p y g< Board must have one copy of

reproducible material available forreproducible material available for inspection by the public

Leading Cause of Open Meetings Violations:

<It=s cousin Bthey do it this way down theway down the road and don=t get into trouble.

Policies and Procedures

Top 10 Policy Mistakesp y

Mistake # 1<Policies written with too much flowery language

W d L d Cl<We recommend: Lean and Clean

Mistake # 1<Policies written with too much flowery language <Our recommendation: Lean and<Our recommendation: Lean and Clean

Mistake # 2:Mistake # 2:<Policies written as goals rather<Policies written as goals rather than reality ’Your goal is this:

Mistake # 2:<Policies written as goals rather gthan reality

Y l i thi’Your goal is this.’Your reality is this:y

Mistake # 2:<Policies written as goals rather gthan reality

Y l i thi’Your goal is this.’Your reality is this.y<We recommend: write your policies for what you actually do not forfor what you actually do, not for what you wish you did. y y

Mistake # 3:< Policies written likePolicies written like an operations manual, b d hbut not used as such< We recommend:We recommend:< policies as guides,

t t b t< not step-by-step directions

Mistake # 4:< You don=t know your policies. ’You will always have to apply

policies under pressurepolicies under pressure.’That is not the time to:

• look things up.• make things up.make things up.

< We recommend:K li i !Know your policies!

Mistake# 5:<You don=t follow your policies.You don t follow your policies.

This is NOT the process:p

Mistake # 5:<You don=t follow your policies. y p< We recommend:

F ll li i’Follow your policies.’If you don=t like the result, follow y ,

them anyway, then change the policiespolicies.

Mistake # 6:<You don=t update your policies.p y p

Mistake # 6:<You don=t update your policies.p y p<We recommend: have a process of

i d d treview and update.’Rule 10: every 3 yearsy y

Mistake # 7:<Board members don=t Aown@ their district=s policies.

Mistake # 7:<Board members don=t Aown@ theirBoard members don t own their

district=s policies.W d th t b d<We recommend that boards: demand policy inputde a d po cy put accept consequences of their

li ipolicies support applicationpp pp

Mistake # 8:<Your policies are inconsistent.Your policies are inconsistent.

Mistake # 8:<Your policies are inconsistent.p’With each other’With state law’With state law

<We recommend: review policies for internal consistency.

Mistake # 9:<Your policies try to improve the p y pstatutes.

Mistake # 9:<Your policies try to improve the p y pstatutes.<We recommend:<We recommend: ’Don=t repeat statutes in policy if

you don=t have to.’If the statute requires certain’If the statute requires certain

language, quote it exactly.

Mistake # 10:<Your policies give classified staffYour policies give classified staff rights they don=t have by statute.

PERSONNEL

Statutory Termsy< Probationary - certificated employee

served 3 FTE years or less< Tenured - certificated employee< Tenured - certificated employee

served more than 3 FTE years< Continuing contract - certificated

employee=s contract renews auto-employee s contract renews automatically unless given notice that complies with statute and board policy

Dischargeg< Nonrenew - discharge probationary g p y

employee at end of year< Terminate discharge tenured< Terminate - discharge tenured

employee at end of year< Cancel - discharge certificated

employee mid contractemployee mid-contract

Statutory EntitlementyProbationary Employee

< Observation and evaluation once each semestereach semester’ Full instructional period’ List of deficiencies’ Suggestions for improvement’ Suggestions for improvement’ Follow-up evaluations and assistance

Tenured TeachersSeven Deadly Sins

’Incompetence’Neglect of duty’Neglect of duty’Unprofessional conduct

I b di ti’Insubordination’Immoralityo y’Physical or mental incapacity

Oth d t’Other conduct

Probationary Hearingy g< Conducted before the board< Supposedly informal

“Di d l i ” iti< “Discuss and explain” position on continuing employmentg p y< Board decision may be for any reason except unconstitutional onereason except unconstitutional one< Majority of quorum sufficientj y q

Tenured Teacher Hearingg<Notice of possible termination<7 days to request hearing<Hearing within 30 days<Hearing within 30 days<5-day notice before hearing’Charges’Names of witnesses’Names of witnesses’Substance of testimony’Documents

Tenured Teacher Hearingg<Hearing is formal<Administration, board and teacher represented by attorneysrepresented by attorneys<Presentation of evidence<Cross examination<Decision based solely on evidence<Decision based solely on evidence<Majority of members of board must vote to terminate

Reduction in Force< RIF hearings very much like others< No wrongdoing< Must establish< Must establish’Change in circumstances’Necessity to reduce force’Teacher is specifically affected’Teacher is specifically affected

< Right of recall for 24 months

Board Responsibilityp y< Primary role is as policy makersy p y< Remain impartial< Do not become involved in the< Do not become involved in the

evaluation process< Active board involvement can:’ Change focus of hearing’ Change focus of hearing ’ Cause a decision to be overturned

The Hearing!g

Board Members= Status

Board Members= StatusSee no evil, hear no evil, speak no evil

C b t l t< Convey concerns about employees to the superintendentp

< Hold superintendent accountable for personnelpersonnel

< Require patrons with complaints to follow the complaint policy/procedure

< Don=t make promisesDon t make promises< Otherwise, stay out of the process

Investigationsg

Investigationsg< The administration is responsible for p

conducting investigations< Board members must refrain from< Board members must refrain from

being involved in any investigation of the facts of the case

Confidentialityy

Confidentialityy< By statute:y’Nonrenewals, terminations and

ll ti fid ti lcancellations are confidential’Contents of personnel files are p

confidential< Don=t discuss the facts with anyone< Don=t discuss the facts with anyone

Bias of Board Members

Bias of Board Members< Board members are not required to b i l l bi dbe ignorant or completely unbiased. However. . .However. . .’Hearing before a tribunal that Ahas

t i ti lit t dan apparent impartiality toward the charges.@g

’Board members must be able to b th i d i i th idbase their decision on the evidence at the hearing

COMPLAINTS AND CHAIN OF COMMAND

Patron Complaintsp< It is not your job to y j

resolve patron l i tcomplaints

< Know the complaint ppolicy

< Refer patrons to it< Refer patrons to it< Don=t make promisesp