2. Department of Education Administrative Rules , and summarize the roles of superintendents and principals.

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1 The Role and Responsibilities of School Board Members Role and Responsibilities in General A. A school board has two basic roles, the legislative role and the quasi-judicial role. B. The board's legislative role consists of actions that are characterized by a high degree of discretion and judgment and that do not concem the rights of particular individuals in a particular matter. 1. This role includes setting policies, preparing the budget, and seuing long term and shortterm educational goals ofthe school district. A school board's legislative role is summarized in New Hampshire Department of Education Administrative Rule Ed Department of Education Administrative Rules , and summarize the roles of superintendents and principals. C. A board's quasi-judicial role involves making decisions that determine the rights of particular individuals in specific matters that fall within the school board's jurisdiction. L The New Hampshire Supreme Court has held that an action is judicial or quasi-judicial if board members "are bound to notiff, and hear the parties, and can only decide after weighing and considering such evidence and arguments as the parties choose to lay before them." Winslow v. Holderness Planning Board, 125 N.H. 262,266 (1981). 2. A board's quasi-judicial role is limited to the matters for which it has been granted jurisdiction by law. A school board's quasi-judicial jurisdiction includes the following : a. Employee dismissal, non-renewal and suspension. 1. Teacher non-renewal and dismissal statutes give school boards jurisdiction to hold hearings in those cases. RSA 189: l3, '.14-a. 2. The United States and New Hampshire Constitutions also require due process before employees may be dismissed or suspended without pay. When the board signs an employee's individual employment contract, the board usually must hold the suspension or dismissal hearing. b. The board must hold student discipline hearings conceming a student's expulsion fiom school, the superintendent's recommendation that the board suspend a student from school for more than l0 school days, or on appeal from a superintendent's decision to suspend a student liom school for more than 10 school days. RSA 193:13; 8d

2 c. A school board must hold a hearing concerning a parent's petition to re-assign the child to a diflerent school at school district expense on grounds that the child will suffer a manifest educational hardship if the child attends the assigned school. RSA 193:3 I. 1. However, since 2001, a superintendent has had the option of re-assigning students at school district expense without a school board hearing if the superintendent concludes that the re-assignment meets several criteria, including the determination that re-assignment would be in the pupil's best interests. RSA 193:3 III' II. Limitations on School Board Quasi-Judicial Jurisdiction A. As discussed above, a board may exercise quasi-judicial jurisdiction only over those matters for which it has been granted jurisdiction' B. Questions often arise as to whether a board may renew or dismiss teachers over the superintendent's obj ection. 1. Renewal is a two-step process which requires both the superintendent's renomination and the board's re-election of the teacher. RSA 189:39. Thus if a teacher is not renominated by the superintendent, the board does not have the opportunity to re-elect the teacher' a. However, a'otenured" teacher who is not renominated by the superintendent has the option to request a non-renewal hearing by the board pursuant to RSA a. The board may reinstate the teacher following such a hearing if the board concludes that grounds did not exist for the superintendent to withhold the renomination. 2. Likewise, dismissal is a two-step process which requires the superintendent's recommendation that the board dismiss the employee, and the board's decision to dismiss the employee after it holds a hearing on the superintendent's recommendation. C. School boards may not overfum team decisions in special education cases. 1. State and federal law establish the procedures for special education decisions, and exclude school boards from such decisions. A parent who disagrees with a special education team's decision may appeal that decision to a New Hampshire Department of Education hearing officer. Following a hearing, that hearing officer will make a decision. The parent or the school district may then appeal the decision to a court of competent jurisdiction, usually federal court. Ed Part 1128.

3 2. Multiple state and federal administrative and judicial decisions also have made clear that neither the State Board nor a local school board may interfere in a special education team's decision. See Alison N, v. Hanover School Board, Civil Action No L (D.N,H. April 14, 1981); In re: Ryan S., N.H. Department of Education Case No (October 30, 1990); Tucker, 18 IDELR 965 (US Department of Education, Office of Special Education and Rehabilitative Services, 1992). An individual who believes that the school district has violated state or federal law may file a complaint with the New Hampshire Commissioner of Education. The Commissioner will assign an investigator. Following the investigation, the Commissioner will make findings and a decision. Ed Part T\e complainant or the school district then may appeal the Commissioner's decision to the State Board of Education and, ultimately, to the New Hampshire Supreme Court. III. Disqualification of Board Members from Voting A. Disqualification for Personal or Pecuniary Interests l. A board member is not qualified to vote in legislative or quasi-judicial decisions conceming which the board member has a direct personal or pecuniary interest that is immediate, definite and capable of demonstration, and is not speculative, uncertain, contingent or remote. Atherton v. Concord, 109N,H. 164 (1968). B. Disqualification for Prejudgment l. 2. Prejudgment of a legislative issue does not disqualiff a board member from voting. "To impose such strict a requirement of impartiality on legislators would be to ignore the political realities of the election process and unnecessarily restrict public dialogue..." Ouinlan v. Citv of Dover 136 N.H. 226,232 (1990). However, prejudgment of an issue disqualifies a board member from sitting in a quasi-judicial capacity. Winslow v. Holdemess, 125 N.H, ; Appeal of Hopkinton School District, l5l N.H. 478 (2004). a. The parties to a quasi-judicial decision of a board are entitled to receive due process, and due process requires an unbiased decision maker. Therefore, a board member who actually prejudges the issue, instead of deciding it based only upon the evidence and arguments presented during the quasi-judicial hearing, should be disqualified from participating in the decision. b. The appearance of bias, without actual prejudgment, is legally insufficient to disqualiff a board member from participating in a quasi-

4 judicial decision. See Appeal of Hopkinton, l5l N.H. 478 (2004)' Still, board members should avoid creating the appearance of bias whenever possible so that the issue need not be litigated. c. Evidence that a board member should be disqualified for prejudging a quasi-judicial decision may include, but is not limited to, statements by an individual about the matter while a member of the board or before becoming a member of the board. Winslow v. Holdemess Planning Board, 125 N.H. 262, (1984). C. Effect of Voting Improperly L If a board member improperly votes in the legislative context, the board's action will be overturned only if that board member's vote determined the outcome. Michael v. Rochester, I t9 N.H. Ta 0979); Atherton v. Concord, 109 N.H. 164 (1968). 2. However, when an individual board member improperly participates in a quasi-judicial action, the board's action must be overturned and voided, regardless whether that individual board member's vote influenced the decision. Winslow v. Holderness, 125 N.H. 262 (1984). IV. Other Issues A. Individual Board Members Have no Legal or Official Authority 1. Authority rests with the board acting as a board, and action taken by a board member has no legal effect unless it is voted upon by the board at a meeting which complies with the quorum and other requirements of the Right to Know Law. RSA 91-A; Waugh, "Knowing the Tenitory: A Survey of Municipal Law for N.H. Local Officials," at l6 (N.H. Municipal Association); New Hampshire School Board Association model policy BBAA; Haverhill School Board policies BBAA, BCA. 2. However, a majority of the Board may vote to delegate a task within its jurisdiction to one or more of the board members. For example, the board may vote to delegate its responsibility for holding a non-renewal hearing to a subcommittee of the board. 3. Board members risk personal liability when they act alone. Statutes which protect board members from personal liability (RSA 3 1 :104 - :106) apply only when board members act in good faith and within the scope of their official authority. Since individual board members have no legal or official authority to act alone, acting alone exposes an individual board member to personal liability.

5 B. In addition to avoiding disqualification of board members, other reasons exist for board members not to publicly ct'rticize employees and other individuals, not to publicly discuss student and other confidential information, and not to undermine a school district's chain-of-command. 1. Board members must maintain the confidentiality of information that the board member leams by virtue of his or her official position if the information (l) is exempt from disclosure under the Right-to-Know Law, or (2) is discussed in a sealed non-public meeting of the board. Breaching such confidentiality obligations constitutes a violation of the board member's oath of office and is grounds for removal from the board by the Superior Court. RSA 42:1-a. 2. Public criticism of employees and other individuals by a board member may expose a school district and the board member to liability under defamation or other legal theories. 3. Publicly discussing student or other confidential information may subject a school district to liability for violating confidentiality laws (FERPA. HIPAA, etc.). It also may expose the school district and the board member to liability under invasion ofprivacy and other legal theories. 4. Going outside the chain of command may undermine managerial employees' abilities to do their jobs, and may prompt individuals to attempt end runs around the chain of command in order to get whatever they want. 5. It is impossible for board members to be informed and knowledgeable about every issue that arises in the dayto-day operation of a school district, so board members need to rely upon the individuals they employ to carry out those dayto-day operations. V. In conclusion, it is imperative that board members and administrators understand their roles and respect the roles ofeach other.