Ten Practices to Avoid LiabilityTen Practices to Avoid Liability

PRESENTED BY:PRESENTED BY:

Robert RaderRobert Rader, , Executive DirectorExecutive Director

Patrice McCarthyPatrice McCarthy, , Deputy Director and General CounselDeputy Director and General Counsel

Kelly Moyher, Kelly Moyher, Senior Staff AttorneySenior Staff Attorney

Connecticut Association of Connecticut Association of Boards of EducationBoards of Education

The presenters gratefully The presenters gratefully acknowledge the work of the NSBA acknowledge the work of the NSBA

Council of School Attorneys Council of School Attorneys

““A School Law Primer”A School Law Primer” on which this on which this presentation is based.presentation is based.

11: : Know the Boundaries of Know the Boundaries of Your AuthorityYour Authority

Authority of boards derived from state

constitution

statutes

administrative provisions

State statutes delegate oversight of public education to local and/or regional boards

Local boards hold express and implied powers

Courts reluctant to interfere with board decisions, but will invalidate any board action that is: arbitrary capricious or outside the board’s legal authority

2: 2: Focus on the Board’s Focus on the Board’s Policy Making RolePolicy Making Role

• • Boards are policy-making bodies responsible for establishing rules and procedures

•• State and federal law mandate certain policies and procedures

generally allow the school board to determine the specific details

Board policyBoard policy

•• Guides day-to-day administrative decisions

•• May address issues of importance not mandated by law

Distinction between the policy-making role of the board and the administrative role of the superintendent is not always clear.

some states clarify the roles in statute

3: 3: Adhere to Student Adhere to Student Discipline PoliciesDiscipline Policies

• Boards set codes of conduct and sanctions • Courts defer to school officials if rule relates

to legitimate school concerns• Policies upheld by courts if

clear and understandable

fair notice to students

rational relationship between ruleand educational purpose

Student discipline - decisionsStudent discipline - decisions

• Board becomes involved when necessary to expel a student

• Board acts as impartial decision-maker

• Board or superintendent has authority

to suspend or terminate staff

• Usually terminated for

budgetary reasons

misconduct

incompetence, or now ineffectiveness

4: 4: Understand the Staff Understand the Staff Discipline ProcessDiscipline Process

•Requires due process•Amount of process depends on

potential disciplinary sanction employment status or

classification of employee applicable law, regulations,

policies or employment contract

Suspension without pay Suspension without pay or terminationor termination

5: 5: Review and Adhere to Policies Review and Adhere to Policies on Holiday Celebrationson Holiday Celebrations

• Establishment Clause vs. Free Speech Rights• Holiday traditions are part of our culture; however,

proselytizing on behalf of any religion is prohibited – A very fine line!

• Secular symbols • Promote understanding of cultural and religious

differences• Make sure staff, students and the community are familiar

with school policies

• Board must act as a body• Individual members not empowered to make policies or perform official acts

6: Be Familiar with the Laws 6: Be Familiar with the Laws Governing Board MeetingsGoverning Board Meetings

What constitutes a meeting?What constitutes a meeting?

• Quorum• Posted and open to the public • Official business

• Electronic meetings?

Public noticePublic notice

State statutes generally require that the public receive advance notice of the time, place, and agenda for board meetings.

Executive sessionExecutive session

Some issues may be discussed in executive session personnel matters

collective negotiations or bargaining

purchase or lease of real property

consultation with an attorney about litigation business pertaining to lawful privilege or confidentiality

Public participationPublic participation• No absolute right to speak at public meetings,

unless provided by state law• As long as content neutral, reasonable ground

rules can be placed on public comment period • In a designated public forum, no content-based

restrictions

7: 7: Guard Against Nepotism and Guard Against Nepotism and Conflicts of InterestConflicts of Interest

• Anti-nepotism policies may prohibit hiring of immediate family or other relatives

• Situations where recusal is appropriate can also arise and should be carefully considered

• Public officials cannot hold incompatible offices

• Some states prohibit employment of board members by the board

• Board should consider adopting a code• CABE has several sample codes of ethics for school CABE has several sample codes of ethics for school

board membersboard members• Boards may also look for guidance from local or

state ethics codes for assistance in constructing an ethics code

• State statutes and regulations may also prescribe rules for implementation of a code

• Check with your state ethics commission (if your state Check with your state ethics commission (if your state has one) for guidance and/or requirementshas one) for guidance and/or requirements

8: 8: Understand Ethical Understand Ethical Considerations for Board of Considerations for Board of

Education MembersEducation Members

9: 9: Clarify the Roles of Board Clarify the Roles of Board Members and the SuperintendentMembers and the Superintendent

• Superintendent acts as “CEO” of the board and school district.

• Has the responsibility of day-to-day operations of the school district.

• The board will hire and evaluate the superintendent• The board and superintendent should always have open

lines of communication, even in negative circumstances.• The board and superintendent relationship is often a

reflection of the school district’s operation as a whole.

10: 10: Plan Your Superintendent Plan Your Superintendent Search Process CarefullySearch Process Carefully

• Confidentiality is key• Consider a Search Consultant• Rules for hire and appropriate certification

are often prescribed through state statutes• Boards may also need to follow FOI rules

The board’s role concerning violence in The board’s role concerning violence in school and school securityschool and school security

• Board responsible for ensuring schools are safe for students, teachers and staff

• Instructional programs to educate students about alternate, non violent conflict resolution/change in culture

• Audit safety and discipline policies• Ensure policies and plans are well publicized to parents, visitors and

public• Align emergency management plan with all hazards approach and

collaborate with emergency personnel community partners• Develop Memorandum of Understanding (MOU) with school

resource officers• Staff training to engage and work with students and families affected

by mental illness