Coming to Order: How to Plan and Conduct Effective School Board Meetings By: Barry Forbes WASB Associate Executive Director Staff Counsel bforbes@wasb.org 1-877-705-4422 (phone) 1-608-512-1707 (direct phone) 1-608-257-8386 (fax
Sources of Meeting Procedures and Rules of Order Open meetings law Closed sessions Calling Meetings Setting the Agenda for a Board Meeting Public Participation at Board Meetings School Board Operating Principles and Ground Rules Meeting Minutes
State law Locally developed policy These policies may incorporate a pre-existing parliamentary framework (such as Robert s Rules of Order ) Pieces can sometimes be found in policies that cover related topics (e.g., agenda preparation, minutes of school board meetings, election of board officers, public comment periods, filling vacancies, etc.) Sometimes, local policy will address meeting procedures that apply to a very specific purpose/context (e.g., policy adoption, consent agendas, budget development, public hearings, committee work, the annual meeting, etc.) Local practices that have developed over time - Ad hoc decisions made during meetings.
A governmental body shall not conduct public business (including meeting to gather information or discuss issues within the board s jurisdiction) outside of the context of a properly noticed meeting. Governmental bodies must give appropriate and timely notice of the time, date, place, and subject matter of their meetings. (There is a collective bargaining exception.) Meetings of a governmental body shall be open and accessible to interested members of the public, unless the meeting has been lawfully convened in a closed session.
Wisconsin policy of openness in government. See Wisconsin Statute 19.81(1) The open meetings law applies to meetings of governmental bodies. See Wisconsin Statute 19.83(1)
Governmental Body The term governmental body includes school boards and subunits (i.e., committees) created by a board. Governmental bodies may also be created by government rule or order. Exception for bodies created for or meeting for the purpose of collective bargaining. However, exchange of initial proposals must be in open session.
Meeting In order for there to be a meeting, the numbers and purpose requirements must be met. Numbers: Typically, if one-half or more of the members of a governmental body is present, the numbers requirement is met.
Meeting Numbers: A negative quorum can be created if fewer than one-half of the members can block an action. Purpose: Members must be present to conduct governmental business (e.g., discussion, decision, or information gathering).
Meeting Walking quorum: Series of gatherings of separate groups of members, each less than a quorum, who agree to act uniformly in sufficient number to reach a quorum. Electronic communications: Depending on how they are used, electronic communications such as e-mail or texting could create a meeting.
Requirements If the open meetings law applies, there are a series of requirements that must be met. Notice to (1) the public; (2) news media that has requested notice; and (3) official newspaper. Please note: 2015 Wisconsin Act 79 has provided more flexibility in this area.
Requirements In almost all circumstances, notice must be given at least 24 hours in advance of the meeting. Notice must contain time, date, place, and subject matter of the meeting.
Requirements Accessibility: Meeting must be reasonably accessible to members of public and must be open to citizens at all times (excluding closed sessions). The public s right to attend does not require the board to allow citizen participation at the meeting.
A board can enter into closed session if one of the statutory exemptions applies. See Wisconsin Statutes 19.85(1)(a) - (h) Meeting must initially be convened in open session. Procedure: Convene initially in open session, presiding officer makes the announcement of the proposed closed session, there is a motion, and then the individual votes on the motion to convene in closed session are recorded. Board can discuss only those items for which it legitimately convened in closed session. Policy #173 Executive Sessions
Example exemption: The Board will meet in closed session to discuss offering an employment contract extension to a principal according to Wisconsin Statute 19.85(1)(c) Considering employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility.
Why is it important to keep closed session information confidential? Confidentiality is sometimes required by law. Keeping the information confidential is in the public s interest. Disclosing closed session information destroys trust between board members and between the board and administration. Disclosure could result in legal liability for the individual who discloses the information.
What is a body created by governmental rule or order? Specificity of subject matter within a meeting notice. Meeting accessibility. Managing public comment periods. When does a meeting occur? Negative quorums, Walking quorums, and the use of electronic communications Scheduling meetings / identifying agenda items Closed sessions: appropriate use and procedures WASB School board meeting self evaluation tool
Resources Wisconsin Statutes 19.81-98 2015 Wis. DOJ Open Meeting Law Compliance Guide WASB Open Meetings Law Brochure WASB Legal Comments, Aug. 2007, May 2006, Sept.- Oct. 2004 (www.wasb.org; go to Legal Information drop-down menu; click on Legal Comments List. ).
Unified School Boards The school board shall meet at least once each month and At other times upon the call of the school district president or upon the filing of a request with the school district clerk signed by a majority of the school board members. Wisconsin Statute 120.43 Other Boards (except MKE) The school board in a common or union high school district shall hold a regular meeting at least once each month at a time and place determined by the school board. A special school board meeting shall be held upon the written request of any school board member. The procedure for calling a special meeting begins with filing the request with the school district clerk. Wisconsin Statute 120.11
By Board Members: Addressed in Policy #171.2 Agenda Preparation and Dissemination In most districts, agenda setting is a collaborative and somewhat fluid process, with some deference given to the final decisions of the district administrator and/or board president as to how items will be prioritized from meeting to meeting.
By Board Members: Special Board Meetings: if a board member feels that the board president and/or district administrator are using their discretion to improperly "block" that board member's item(s) of business from being brought forward in a timely manner, the board member can attempt to call a special meeting of the school board.
By Administrators: While the school board has ultimate authority to set its meeting agendas and allocate its meeting time, as a practical matter it is critical to the job of the district administrator that he/she is able to timely raise and place items of business on board meeting agendas. A common practice is that the district administrator and board president work collaboratively to determine the final meeting agenda.
By the Public: Generally, it is undesirable for board policy to state or imply that students, parents, non-administrators, or other individuals in the community have the power to place specific items of business on a board meeting agenda. Such policies may unintentionally create a limited public forum for the exercise of First Amendment rights that would compromise the board's ability to control its meetings.
By the Public: As a practical matter, regardless of any board policy, any individual in the community can raise a suggestion for an agenda item simply by communicating with administrative staff or with an individual board member. In addition, administrative rules and/or staff handbooks can explain how an individual employee can appropriately raise an issue through his/her supervisor. Finally, board policy can direct members of the public to any period of public comment that may be established by the board as part of the agenda for board meetings.
Public Hearing: Some state and federal laws require the school board to hold public hearings or seek other public input prior to taking certain actions or adopting certain policies. Examples: Annual budget hearing. Wisconsin Statute 65.90(4) Hearings on borrowing resolutions. Wisconsin Statute 67.05(6a)(a)2.b Hearings on school district requests for a waiver of rules or statutory requirements from DPI. Wisconsin Statute 118.38(1)(b) Hearings regarding the establishment of a charter school. Wisconsin Statutes 118.40(2) and (2m).
Public Hearing: In some cases, school board policy may specify that the school board will hold a public hearing before the board takes certain actions (e.g., changing school attendance boundaries). The remainder of this presentation assumes that a public hearing or other similar requirement does NOT apply.
Most school boards find that it is important to both allow and limit periods of public comment at board meetings. The law provides a lot of flexibility to school boards in structuring public comment periods, but boards must be very cautious about content-based and viewpointbased restrictions. It is almost always helpful to have (and follow!) a formal board policy regarding periods of public comment. The presiding officer of the meeting must be willing to assert a strong presence, consistently enforce the rules, and exercise patience. A public comment period is not the only way, or typically the best way, to (1) obtain broad input on an important question; or (2) have fact-specific issues/complaints brought to the District s attention. Policy #187 Public Participation at Board Meetings
A school board has no legal obligation to regularly include a period of public comment on its meeting agendas. When a school board chooses to allow members of the public an opportunity to address the board at a meeting, the period of public comment must be included on the meeting notice. See Wisconsin Statute 19.84(2) When a school board receives public comments on topics/issues that are not otherwise part of the publicly-noticed meeting agenda, it is permissible for board members to briefly discuss and respond to the issue. However, the school board may not take formal action on any such topic/issue (i.e., on a subject that is not otherwise identified in the meeting notice). 2015 Wis. DOJ Open Meeting Law Compliance Guide, Wisconsin Statute 19.83(2)
When will public comments be heard (e.g., regular meetings, special meetings, committee meetings, etc.)? Will comments can be allowed on any topic/issue, or be limited, e.g., to noticed agenda topics? How much time is allowed for public comment? The placement of the public comment period on the agenda (e.g., at the beginning of the meeting, at the end of the meeting, etc.).
The length of time each person will be permitted to speak. The class of eligible speakers (e.g., school district residents and taxpayers)????? Pre-comment speaker registration requirements. The ability to make exceptions to the normal procedures. Other content-neutral limitations (e.g., prohibiting repetitive appearances, and comments that are obscene, threatening, or that would constitute harassment).
A period of public comment is a type of designated forum for speech that, generally speaking, has a substantial degree of protection under the First Amendment including a requirement of viewpoint neutrality Any content-based exclusion of speech in a designated forum must serve a compelling government interest and be narrowly drawn to achieve that end. The government may enforce reasonable time, place and manner restrictions, provided they are content-neutral, narrowly tailored to serve a significant government interest, and leave ample alternative channels for communication.
Very complex issues can arise when: 1. A speaker presents a complaint dealing with the alleged conduct of individual students or individual staff members; or 2. A district employee decides to speak to the school board during a public comment period; or 3. A board member recuses him/herself from the board and goes and speaks from the audience at a public comment period.
Many districts start the period of public comment by having the presiding officer deliver a standard speech that: (1) identifies procedures; and (2) reminds speakers that they are not immune from legal consequences related to the content of their speech. The presiding officer needs to consistently enforce any established limitations on speaker time or content.
The presiding officer may interject during a speaker s comments and attempt to redirect a complaint/issue to an established procedure. The presiding officer may interrupt, and potentially cut off, a speaker whose speech is, e.g., threatening, obscene, or unduly disruptive/disorderly (make sure board policy prohibits such conduct). The presiding officer may help direct the nature of the board s response, if any, to a speaker s comments.
Approach #1: Limiting public comment to noticed agenda topics will inherently limit the issues that can be brought to board meetings as complaints. Approach #2: Make sincere efforts to redirect such complaints, but ultimately let the individual present his/her comments, perhaps with a follow-up disclaimer by the presiding officer.
Approach #3: Take a calculated legal risk that potentially tests the limits of constitutional law, e.g., Fairchild v. Liberty Independent Sch. Dist., 597 F.3d 747 (5 th Cir. 2010); but see, e.g., Mesa v. White, 197 F. 3d 1041 (10th Cir. 1999); Bach v. School Bd. of the City of Virginia Beach, 139 F. Supp. 2d 738 (E.D. Va. 2001) (citing additional cases)
There are clearly some situations in which an employee will be able to claim that his/her public comments at a board meeting constitute concerted labor activity under section 111.70(2) of the state statutes or speech as a citizen on a matter of public concern that has some legal protection. When such legal protection exists, it often means (at a minimum) that neither the board nor any individual officer, employee, or agent of the district may engage in any coercive or retaliatory conduct that would unlawfully hinder, impede, or interfere with the employee s exercise of his/her legal right to speak.
However, in other situations, an employee s public comments as a registrant during a public comment period are likely to lack such strong legal protection, and the employee s decision to address the board may lead to the imposition of legal and/or employment-related consequences.
For example, legal or employment-related consequences might result from certain presentations by an employee: (1) that are defamatory; (2) where the employee is a policy-making official whose comments contradict the policy direction chosen by his/her superiors; (3) where the employee violates a law (e.g., by disclosing confidential student records); or (4) where the employee pursues an issue deemed to be a private employment grievance.
An employee who chooses to address the board (or a committee) during a public comment period should do so knowing that choosing to speak in the public comment forum comes with some risks, and that being permitted to complete his/her unsolicited remarks should not be confused with a guarantee or commitment from the district that the employee will be immune from any or all legal or employment-related consequences. Equally important, a school official who is considering taking employment-related action against an employee who has addressed the board during a public comment period should do so with extreme caution and by attempting to first ascertain the degree to which the employee s conduct/speech may enjoy legal protection. Please see Meade v. Moraine Valley Community College 7 th Cir. Ct. Appeals 10/30/2014 for an example of a recent case where the 7 th circuit court of appeals (the federal court of appeals that covers Wisconsin) addressed a case that involved these types of issues.
General rule: Absent proof to the contrary, the action of a school board is presumed to have been in conformity with its own rules. Wisconsin courts have not required strict compliance with non-statutory technicalities of parliamentary procedure, provided the proper number of board members have acted and the facts of the board s action can be ascertained from the meeting minutes. Policy #181 Rules of Order
School boards may adopt rules of parliamentary procedure consistent with law. School boards are not required to adopt such rules. A board s parliamentary procedure need not be elaborate.
Many boards use Robert s Rules of Order: The Attorney General and numerous courts have recognized Robert s as a proper set of parliamentary rules. Robert s rules are designed for large assemblies. Boards should consider using the chapter on small boards or otherwise modifying Robert s to fit the size of the school board (i.e., use Robert s Rules as a guideline, not a requirement).
Robert s Rules suggest the following informalities for small boards: Members not required to obtain floor before speaking. Motions need not be seconded. Members not limited in number of times they may speak. Allow informal discussion of subject without motion pending. Formal motion not required if proposal is clear to all. Chairman allowed to make motions and vote. Votes by showing of hands allowed.
Discussion of a topic/issue is often permitted before any motion has been made on the topic. Members are generally recognized simply by raising their hand, and a member who has the floor typically speaks from his/her seat. There may not be a pre-defined limit on the number of times that an individual member can speak to an issue. The school board president generally votes on and participates in the discussion of all motions, even though he/she is the presiding officer of the meeting. Voting may take place by a variety of methods, including a roll call, a voice vote, or a showing of hands.
A consent agenda is a list of multiple motions that have been consolidated (grouped together) and that the school board will be asked to adopt under a single motion. Any school board member may unilaterally require that any individual item(s) listed on the consent agenda be separated for independent consideration. Discussion on the motion to approve the consent agenda is generally allowed. A consent agenda is most appropriate for routine and non-controversial matters. Open Meetings Law concerns: (1) public notice of the subject matter, and (2) the record of the actions taken.
The general rule is that a motion is deemed passed/adopted when a majority of the members voting have cast their votes in favor of the motion. Exceptions exist under state law, under Robert s Rules, and under most school board policies/practices. The general rule is that a tie vote is the equivalent of defeating/rejecting the motion/resolution. Two-thirds of 9? 7? 5? (6, 5, 4) Board policy can establish a particular order of voting for roll call votes (e.g., in a rotational system, by seniority, alphabetically, etc.) Policy #183 Voting Method
Other than for the election of board officers: (1) there can be no secret ballots; Any board member may call for a vote to be taken such that each member s vote is ascertained and recorded. Where no special voting requirements exist, the general rule is that, particularly where the total number of votes cast provides a quorum, a motion passes by a majority of the votes that were actually cast. Exceptions exist under state law, under Robert s Rules, and under most school board policies/practices. A tie results in the defeat of a motion.
Abstention can occur for various reasons, and sometimes complicates voting and the determination of outcomes. If a board member abstains from a vote, they should clearly announce that they will be abstaining and the abstention should be recorded in the minutes. If a board member abstains from voting due to a conflict of interest (or a potential/perceived conflict of interest), they should generally refrain not only from voting on the matter, but also from participating in the discussion. Many school attorneys will recommend physically leaving the meeting room. Board member voting, 4/07 WASB Legal Comment
WASB School board meeting self evaluation tool BoardDocs egovernance Solutions - Online Policy Management and Paperless Meeting Services
Electing officers WASB Legal Comment March 2007 Duties and Responsibilities of School Board Officers Parliamentary Procedure Holding Effective Board Meetings, The Focus, November 2003. Reconsideration and Recission of School Board Action WASB Legal Comment December 1992 Reconsideration and Recission of School Board Action WASB Legal Comment January 1993 Annual Meeting The Annual School District Meeting
Legal Responsibility for Minutes: The clerk is required by statute to record the minutes of all meetings, including both open and closed sessions. The president has statutory duty to ensure that minutes of the meeting are properly recorded, approved and signed. The school board as a whole has ultimate responsibility for ensuring and approving accurate minutes. Minutes of School Board Meetings WASB Legal Comment May 2009
Content of Minutes: The Open Meetings Law requires that all motions and roll call votes be recorded, preserved, and open to public inspection under the Wisconsin Public Records Law. Wisconsin Statutes 19.88(3)
Content of Minutes: The minutes must include the substance of every official action taken by the board in both open and closed session. Substance is defined as an intelligible abstract or synopsis of the essential elements of the official action taken by a local governing body, including the subject matter of the motion, the persons making and seconding the motion and the roll call vote on the motion. Example: If you nonrenewal a teacher, the name of the teacher nonrenewal must be recorded in the minutes.
Publication of Meeting Minutes: The proceedings of the school board meeting must be published within 45 days after the meeting as a class 1 notice in a newspaper published in the district, if any, or publicized by a school district-wide distribution prepared and directed by the school board and paid out of school funds. If there is no newspaper published in the district, the proceedings shall be posted or published as the school board directs. The proceedings must include the substance of every official action taken by the board and a statement of receipts and expenditures in the aggregate. See Wisconsin Statute 120.11(4)
Disclosure and Retention of Meeting Minutes: Minutes are usually public records. Drafts of minutes are probably records unless the document fits the definition of draft in the public records law. The notes of individual board members are not records if the notes are prepared for the board member s personal use. Open session minutes are generally subject to disclosure without limit. Closed session minutes may not be subject to disclosure. Apply the same tests for nondisclosure applied to other public records.
Closed Session Minutes: Boards must keep minutes of closed sessions. If action is taken in the closed session, then the minutes must record that action. If no action is taken in the closed session the board discusses a matter but takes no action the minutes simply reflect topic of discussion. Example: The board moved to closed session and discussed collective bargaining strategies for the teacher contract negotiations.
Barry Forbes has served as WASB staff counsel since 1983 and has more recently been appointed, with Bob Butler, the Association s co-associate executive directors. WASB Staff counsel provide representation to nearly one-quarter of all school districts in Wisconsin on employment & labor, human resources and school law matters. They also provide membership services, including general legal information, to all school districts that are members of WASB. For more information, please visit the WASB s website at: http://wasb.org/websites/employment_law_hr_services/inde x.php?p=900