Rock County and Keya Paha Board Retreat

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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 Authority Sources and Limitations

School Districts are “Creatures of Statute@ < What the Unicameral giveth, it can taketh t k th away < Individual board members have no authority AThe The school board is a public body empowered by law to transact the business of the school district purposes. p The members act in a for school p representative 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 accurate accounts < Operationally ’ 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 in all areas

Open p Meetings g Act

Open p Meetings g Act Sections 84-1408 to 84-1414

< The formation of public policy is public business and may not be conducted in secret. < Every E meeting i off a public bli body b d shall h ll be open ope to tthee pub publicc in oorder de tthat at citizens may exercise their d democratic ti privilege i il off attending tt di and speaking. . .

What is a Meeting? g < All regular, g , special p or called meetings, formal or informal, of any public body for the purpose of: ’ Briefing (includes retreats) ’ Discussion of public business ’ Formation of tentative policy ’ Taking any action of public body

Publication Requirements q <Must p publicize all meetings g <Reasonable advance notice ’Comfortable with 3 days <To public and board members by: ’A method adopted by board and recorded in minutes

Publication Requirements q Don=t Apply To < Chance meetings < Attendance or travel to conventions or workshops of board members at which there is no board meeting i intentionally i ll convened d

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

Talkingg Out off School

Recommendations < Take care not to ggive appearance pp the board is Ameeting@ at the cafe or bar < Board members B do not discuss school business at the cafe or bar. < Tell patrons who want to talk about school business B Awe we can only deal with school business at board meetings. You should come.@

Emergency Meetings

Emergency g y Meetings g < < < < <

Mayy hold without advance notice Formal action limited to emergency Meeting may be by telephone News media must be contacted Must prepare minutes by next day

Board Agenda g

Board Agenda g < Must publish: ’ Agenda of subjects known or ’ Statement that a copy of agenda is available for inspection < Agenda items must be sufficiently descriptive desc pt ve to give g ve public pub c reasonable easo ab e notice of matters to be discussed < May Ma not amend w/in /in 24 ho hours rs of mtg mtg.

Recommendations < Don=t be cryptic yp B err on the side of expansiveness < Post or publish notice that a copy of the agenda, kept continuously current, is available for inspection at office during regular business hours

Closed or Executive Sessions

Closed Sessions < Board may hold closed session if: ’ Clearly necessary for protection of the public interest or ’ Prevention of needless injury to a person=s = reputation t ti and d the th person q ap public meeting g has not requested

Reasons For Closed Session < Strategy sessions re collective b bargaining, i i buying b i reall estate, and d pending or threatened litigation < Deploying security devices < Investigative I ti ti proceedings di re allegations g of criminal conduct < Evaluation of job performance (to preventt needless dl injury i j and d person has not requested public meeting)

Closed Session B Procedure < Motion must identify: ’ Subject matter ’ Reason necessitating closed session < Closed session restricted to purpose stated d iin motion i and d minutes i

Closed Session B Procedure < Just before closed session, presiding officer must restate purpose/limitation < Minutes must identify: ’ Entire motion for closed session ’ Vote V off each hb board d member b ’ Time commenced and concluded

Reconvene B Formal Action < Board must reconvene before taking any formal action < Formal action means a collective decision or a collective commitment or promise i to t make k ad decision i i on any question,, motion,, p q proposal, p , resolution,, order, or ordinance or formation of a position or policy < Doesn‘t include negotiations guidance

Recommendations < Use closed sessions very y sparingly p gy < Limit them to topic in the motion < There Th iis no legal l l requirement i t to t keep p closed sessions confidential ’ Board members can be forced to tell what was said in closed session

Board Minutes

Meetingg Procedures < Majority constitutes quorum (4 of 6) < President presides ’ Must M point i out Open O Meetings M i Act A post g posting ’ Has authority to expel < Secretary S t iis clerk l k off th the b board d < Meetings g open p to p public

Meeting Procedures < Patron participation ’ Board B d may sett li limits it ’ Mayy require q speakers p to identifyy themselves (but not attendees) ’ Board does not have to allow people p p to speak p at everyy meetingg < Board must have one copy of reproducible material available for inspection by the public

Leading Cause of Open Meetings Violations: <It=s cousin B they do it this way down the road and don=t get into trouble.

Policies and Procedures

Top p 10 Policy y Mistakes

Mistake # 1 <Policies written with too much flowery language <We W recommend: d L Lean and d Cl Clean

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

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

Mistake # 2: <Policies written as ggoals rather than reality ’Your Y goall is i this. thi ’Your realityy is this:

Mistake # 2: <Policies written as ggoals rather than reality ’Your Y goall is i this. thi ’Your realityy is this. <We recommend: write your policies for what you actually do do, not for what yyou wish yyou did.

Mistake # 3: < Policies written like an operations manual, b not used but d as such h < We recommend: < policies as guides, < nott step-by-step t b t directions

Mistake # 4: < You don=t know your policies. ’ You will always have to apply policies under pressure pressure. ’ That is not the time to: • look things up. • make things up. < We recommend: K Know your policies! li i !

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

This is NOT the process: p

Mistake # 5: <You don=t follow yyour policies. p < We recommend: ’Follow F ll your policies. li i ’If yyou don=t like the result,, follow them anyway, then change the policies. policies

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

Mistake # 6: <You don=t update p yyour p policies. <We recommend: have a process of review i and d update. d t ’Rule 10: everyy 3 yyears

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

Mistake # 7: <Board Board members don=t don t Aown@ own their district=s policies. <We W recommend d th thatt b boards: d  de demand a d policy po cy input put  accept consequences of their policies li i pp application pp  support

Mistake # 8: <Your Your policies are inconsistent.

Mistake # 8: <Your p policies are inconsistent. ’With each other ’With state law <We recommend: review policies for internal consistency.

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

Mistake # 9: <Your p policies try y to improve p the statutes. <We recommend: ’Don=t repeat statutes in policy if you don=t have to. ’If the statute requires certain language, quote it exactly.

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

PERSONNEL

Statutoryy Terms < Probationary - certificated employee served 3 FTE years or less < Tenured - certificated employee served more than 3 FTE years < Continuing contract - certificated employee=ss contract renews autoemployee auto matically unless given notice that complies with statute and board policy

Discharge g < Nonrenew - discharge g probationary p y employee at end of year < Terminate - discharge tenured employee at end of year < Cancel - discharge certificated employee mid mid-contract contract

Statutoryy Entitlement Probationary Employee

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

Tenured Teachers Seven Deadly Sins

’Incompetence ’Neglect of duty ’Unprofessional conduct ’Insubordination I b di ti ’Immorality o y ’Physical or mental incapacity ’Other Oth conduct d t

Probationaryy Hearing g < Conducted before the board < Supposedly informal < “Discuss “Di and d explain” l i ” position iti on continuingg employment p y < Board decision may be for any reason except unconstitutional one < Majority j y of q quorum sufficient

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

Tenured Teacher Hearingg <Hearing is formal <Administration, board and teacher represented by attorneys <Presentation of evidence <Cross examination <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 ’ Change in circumstances ’ Necessity to reduce force ’ Teacher is specifically affected < Right of recall for 24 months

Board Responsibility p y < Primaryy role is as policy p y makers < Remain impartial < Do not become involved in the evaluation process < Active board involvement can: ’ Change focus of hearing ’ Cause a decision to be overturned

The Hearing! g

Board Members= Status

Board Members= Status See no evil, hear no evil, speak no evil

<C Convey concerns about b t employees l tto the superintendent p < Hold superintendent accountable for personnel < Require patrons with complaints to follow the complaint policy/procedure < Don Don=tt make promises < Otherwise, stay out of the process

Investigations g

Investigations g < The administration is responsible p for conducting investigations < Board members must refrain from being involved in any investigation of the facts of the case

Confidentialityy

Confidentialityy < By y statute: ’ Nonrenewals, terminations and cancellations ll ti are confidential fid ti l ’ Contents of p personnel files are confidential < Don=t discuss the facts with anyone

Bias of Board Members

Bias of Board Members < Board members are not required to b iignorant or completely be l l unbiased. bi d However. . . ’ Hearing before a tribunal that Ahas an apparentt impartiality i ti lit toward t d g the charges.@ ’ Board members must be able to b base th their i d decision i i on th the evidence id at the hearing

COMPLAINTS AND CHAIN OF COMMAND

Patron Complaints p < It is not y your jjob to resolve patron complaints l i t < Know the complaint p policy < Refer patrons to it < Don=t make promises p

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