Betsy Miller-Jones, Associate
Director of Leadership Services (Read
Bio) is happy to answer OSBA members questions about all kinds of school board meetings.
If you have a question relating to board meetings please send questions to her by e-mail. Ask
Betsy a Question
District staff can post the board actions in the minutes on the web page. What staff members can't do is 'campaign' for those resolutions using district resources or staff time. Recording the boards actions in the minutes and posting the minutes on the web page, as the staff does with all minutes, is not considered 'campaigning' - it is part of regular job duties recording the boards actions. Resolutions should be posted exactly as passed. If they were long that is fine, if they were short leave them that way, don't add any description or justification beyond the actual resolution.
District employees shouldn't do anything for these resolutions that they wouldn't do for any other board action. For example you shouldn't use district resources to type up flyers to be handed out at community activities, write a press release with arguments for and specifically about these resolutions, write a special article on the web page about these resolutions that promotes the reasons for them, or use staff time to make copies about these resolutions for board members to hand out at things they attend.
Staff members can do any of these advocacy projects if they do these on their own time and using their own resources.
Board members may campaign for these resolutions, write articles about them, and speak to groups about them as long as they don't use district resources in any way.
The board may not discuss, deliberate, negotiate or vote on the superintendent's contract in executive session. A sub-committee of the board, even if it is only two individuals, would also be required to have the discussions in public at a posted committee meeting if they jointly make their recommendations to the board.
The Attorney General's Public Records and Meetings Manual, page 114, says "... if the committee members are instructed to make individual rather than group decisions or recommendations, the 'meetings' of the committee are outside the scope of the meetings law. This unquestionably is a difficult area of interpretation, and governing bodies are cautioned not to misuse the committee appointment process or decision-making process to subvert the policy of the Public Meetings Law."
Some things you might consider:
Have the board hold a public discussion of the general parameters for the new contract. The board can then authorize the board chair to have a conversation with the superintendent privately about those parameters and report back to the board at a future public session. A single individual (the board chair in this example) is not considered to be a committee.
Hire your board's attorney to negotiate the contract using the parameters that you set as a board in public session.
The board will still have to deliberate and vote in public session to make the final decision.
If the meeting was advertised by the superintendent as a meeting for the superintendent to discuss and gather information from the community and the board members attended and participated only as community members, the meeting does not need to be posted even if the full board or a quorum were to attend. If, however, board members all step to the front of the room and start discussing the topic or running the meeting and asking questions for their own information, I would say your situation had crossed the line and the meeting should have been stopped.
Be advised, however, that if the Board attends the meeting to gather "information that will serve as the basis of a subsequent decision or recommendation by the governing body, the meetings law will apply." Attorney General's Public Records and Meetings Manual, p. 115.
The court of public opinion is frequently as important as a court of law. If the public assumes that this was a way to avoid posting a public meeting, or there is suspicion about how your board conducts business, or the topic of the meeting is a particularly hot one that the board will soon be addressing and voting on at a board meeting, I recommend posting before gathering. We say "When in doubt, post it."
Then your issue becomes HOW to post it. This is not a board meeting, because the superintendent cannot call a board meeting. One approach is for the superintendent to advertise the meeting in the same places that board meetings are posted and, at the bottom of the announcement, state: "A quorum of the board may be in attendance at this meeting, but members of the board will not be discussing, deliberating, or making decisions. This meeting is for the superintendent to collect information from members of the public." Then stick to it -- no board member discussion.
The short answer is "Yes!" Here's the legal answer you need for future reference: If you've had a regular board election to elect/re-elect members, you must have an organizational meeting no later than the last day of July. This wouldn't be the case this year because we didn't have a board election -- they're always held in May of odd-numbered years. Therefore, this year the meeting must be held "No later than at the next regular meeting following July 1, " (ORS 332.040). This allows for an August board meeting to complete the items on the 'July Checklist'.
The law is inconsistent in requiring one date for years where there has been an election, but allowing the meeting to be held later when there has not been an election. Many Oregon boards do not hold a July board meeting. They meet in August to complete the items on the 'July checklist'.
You can see the items in our July checklist.
ORS 332.040 states "No later than at the next regular meeting following July 1, the district school board shall meet and organize by electing a chairperson and a vice chairperson from its members. No member shall serve as chairperson for more than four years in succession."
ORS 255.335 states "Regular district election; terms of board members; organizational meeting.
The regular district election shall be held by each district for the purpose of electing members of the district board to succeed a member whose term expires the following June 30 and to elect members to fill any vacancy which then may exist. The election shall be held in each such district in each odd-numbered year on the third Tuesday in May.
A district shall not conduct more than one election of board members in any year.
The first regular district election in a district shall be held on the regular district election date next following the year in which the first members of the district board were elected or appointed.
The term of a board member elected at the regular district election shall commence on the first day of July next following the election and shall expire June 30 next following the regular district election at which a successor is elected.
Each district board shall hold a regular organizational meeting following the regular district election and not later than the last day of July of that year.
Answer provided by Rebekah Cook, OSBA Staff Attorney...
In most cases, no. The Public Meetings Law only guarantees the public a right to monitor the school board meetings; it does not grant members of the public the right to interact with the school board during those meetings. Further, if the school board does allow public comments, it can impose procedural restrictions, including the requirement that the citizen comply with the District's complaint procedure.
The Board must follow District policy in hearing these personnel complaints or risk violating its public complaint policy, the Superintendent's contract and/or the District's collective bargaining agreement. In addition, the District should go into executive session to hear complaints against personnel that have been appropriately brought to the board. It should give the school employee notice of the executive session, the opportunity to bring legal representation and the option to have the complaint heard in open session. ORS 192.660(2)(b).
Per the Oregon Attorney General's Public Records and Meetings Manual "Free expression of opinion may not be exercised in an untrammeled fashion wherever and whenever and in whatever manner a person chooses, even on public property. Rules that relate to the order and decorum of public bodies, limitations on time allowed for persons to make presentations, requirements that no one may have the floor without securing permission from a presiding officer, and specific prohibitions against disturbing or disrupting a meeting are not uncommon. Conduct violating such rules provides grounds for ejecting persons from meetings or premises of public bodies." (Letter of Advice (OP-5468), July 13, 1983)
This answer depends on when this person is raising these issues and how your agenda is structured.
If your board member is speaking to an agenda item approved by the board and there is a motion and second on the floor regarding that agenda item, then it is appropriate to allow comments as long as the board member is not attacking or criticizing an individual. Although other board members may not agree with or want to listen to those comments, the board member does have a right to have their make statements related to the motion on the floor. If the comments go on extensively it is appropriate for the chair to ask them to summarize, and point out if they are repeating themselves. If the comments are not relevant to the motion then it is appropriate for any board member to call a point of order and ask to have the comments limited to the motion on the floor. A point of order can be requested as an interruption to the speaker, although it is best to wait until they take a breath. A board member may also make a motion to "call the question" and end debate. The motion to end debate is intended to be made at the end of the last speaker's statement and requires a vote of 2/3 to approve.
If the board member is raising issues not on the agenda, the chair needs to end the discussion and insist that topics only be taken up and discussed if they are listed on the agenda, and then only after a motion and second have been made. This practice ensures that at least two people on the board want to have a discussion of the motion (motion and second), and that a majority of the board want to bring up the topic (approval of the agenda by a majority of the board).
Some boards have an agenda item called "Board member comments" typically at the end of the agenda. During this time individual board members can raise any topics they wish. Most experienced board members and administrators regard this as a less than optimal agenda item for exactly the situation you describe. If this is when these topics are raised your board may want to reconsider this as an agenda item. Board meetings should only cover topics a majority of board members wish to discuss. Ideally the public and the administration should be fully informed in advance - `No surprises' - by listing items of discussion on the agenda. An open item like "Board member comments" opens the door to unpleasant and unwelcome surprises.
There is no legal requirement to allow public comment at all, or to limit it either to agenda items only, or to non-agenda items. Your policy BDDH may require it be held and spell out the specifics for your district. Many boards limit comment to agenda items but I have also observed boards who limit it to non-agenda items. The second case does not really make sense to me - I would think you would want to allow comment on agenda items. Some boards hold public comment twice, once at the beginning of the agenda and once at the end. One time is for agenda items, and the other for non-agenda items.
Most board just call the agenda item ‘public comment’, hold it at the beginning of the meeting, and take comments on both agenda and non-agenda items - even IF their policy says that they limit it to only agenda items. Someone who really wants to can relate almost anything they wish to an agenda item. Creativity knows no bounds.
In terms of 'good practice':
It is good practice to allow public comment, but to limit the amount of time for any one speaker, and to limit the total amount of time spent on public comment. This allows the board to proceed with their planned agenda and necessary work. Typical limits are 3 minutes per speaker, 30 minutes total for the session.
Public comment should be just that, and NOT a discussion with the board. The board should not answer questions on the spot unless they are very simple obvious ones regarding well established agreed on facts, but should refer questions to the administration or board chair for answer at a later time. If an initial answer by the board chair causes a follow up question then the chair should definitely refer the speaker to an administrator for further answers - the answer wasn't quite so obvious as seemed, or the speaker's intention is just to get the chair involved in a discussion.
The board should clearly state that they will not hear complaints against individuals in public, and that all complaints must go through the chain of command as spelled out in policy KL. This statement can be made in writing on the agenda, or by the board chair as an announcement at the beginning of the public comment session. Example:
"Speakers may offer objective criticism of district operations and programs, but the Board will not hear complaints concerning individual district personnel. The chair will direct the visitor to the appropriate means for Board consideration and disposition of legitimate complaints involving individuals.
The board should limit the public's participation to the public comment section of the agenda. There should not be cross discussion between the board and the public during other agenda items.
All public comment should be directed respectfully to the board through the chair. Comments should not be directed at any one individual board member.
The board should clearly explain the 'rules' for public comment in their policy - usually policy BDDH, in writing on the agenda or a handout, and verbally by the chair at the start of the public comment section of the meeting. It is common to ask each speaker to identify themselves by name, or name and address, and many boards ask that speakers fill out a form with basic contact information before they are recognized to speak. All of that should be covered in policy BDDH.
Religion in schools is a hot topic in this state and nationally. Practically speaking, any sort of prayer at a board meeting - even a moment of silence - will draw criticism and could draw a lawsuit. While it may be possible to win such a lawsuit, it will be costly and divisive for your community. Ask yourselves how this action will help you to meet your core mission of educating students. I believe we would be better off not spending our education dollars fighting lawsuits if such lawsuits can be avoided and the actions that were the cause were not part of our core mission.
Here a legal perspective from OSBA staff attorney Rebekah Cook:
Here in Oregon, we are under the jurisdiction of the Ninth Circuit Court of Appeals. Although board members may hear about things being done differently in other parts of the country, or by different types of legislative bodies such as our own legislature, the board is governed by Ninth Circuit Court decisions specifically about school boards. The controlling case for Oregon school boards is Bacus vs Palo Verde, 2002 U.S. app. LEXIS 24552. In this case, the Ninth Circuit Court of Appeals found that a prayer at school board meetings including the phrase "in the name of Jesus" was unconstitutional. This practice violated the Establishment Clause because the school board's prayer always included this phrase, which advanced one faith, and there was not a rotation among leaders of different faiths, sects, and denominations.
It is important to note that courts have distinguished between the political bodies of school boards and the legislature. Some courts have held that school boards are so "inextricably intertwined with public schools that it must be evaluated on the same basis as school boards themselves." Coles V. Cleveland Bd. Of Educ., 171 F.3d 369, 383 (6th Cir. 1999). Thus, while it may be permissible to open a legislative session with a prayer, the same does not necessarily apply for school boards.
As a practical matter, the school board should be wary about including any type of prayer or moment of silence prior to a meeting. As it is such a hot topic, this type of controversy draws the attention of people from all over the country. If the board proceeds, there is a high probability that its practice will result in some sort of high-profile and costly legal action..
National School Boards Association staff attorney Tom Hutton has said, "Courts historically have been skeptical about anything that promotes prayer or one form of organized religion over another in a government-sponsored setting. School boards actually have more flexibility to do invocations than some people might think, but, if they want to stay out of trouble, and out of court, there should be a huge flashing neon sign that says 'moment of silence' and nothing more."
If a board wants to pray prior to school board meetings, it is advisable to solicit legal opinion from the district's attorney and notify your liability insurance carrier.
A consent agenda generally groups several routine, noncontroversial items together to be voted on under one motion, rather than calling for multiple separate votes. The purpose of consent agendas is to help boards manage time so that they can focus on the most important matters. Appropriately used, the consent agenda frees board meetings from administrative details, repetitious discussion, and misdirected attention.
Advantages of using a consent agenda:
Allows more time for discussion of educational issues
Keeps the meeting flowing smoothly
Keeps the board from straying into operational and administrative areas
Requires board members to be well prepared
Disadvantages:
Public perception of "rubber-stamp" board
Lack of understanding of what it is and how to use it
Draws undue attention to items when they are removed from the consent agenda
Requires board members to be well-prepared
Items commonly on a consent agenda: treasurer's or financial report (if uneventful), personnel and employment recommendations, enrollment update, superintendent's report, curriculum and instruction reports, routine policy updates, minutes of previous meetings, committee reports, school calendars, confirmation of a decision discussed previously, routine correspondence.
Items on the consent agenda should be routine items that board members don't need any further information on prior to voting. Most boards allow consent agenda items to be removed from the consent agenda and discussed separately upon a board member's request.
The chair should make every effort to end the public complaint against an individual immediately. This means using the gavel to demand the outburst end or recessing the meeting. It can be awkward to shut down a speaker, but it is important to do so in order to protect the rights of the staff member and limit the district's liability in the situation.
If using the gavel gains control of the situation, the chair can then explain WHY the board won't hear the complaint in public and instruct the individual in the proper steps, as outlined in policy KL. Some chairs keep copies of policy KL on hand to give to individuals who want to bring complaints.
It is possible (at least theoretically) to move immediately into executive session to hear the complaint, but that is dangerous, and I recommend you don't do it. The staff member being complained against may have the right to be notified about the hearing of the complaint, be present and have representation present. Going directly to executive session and hearing the issue would not allow those steps to be taken nor does it allow the administration to research the situation and present all the facts to the board. In addition, it sets a precedent that anyone who wants to make a complaint can get an immediate "audience" with the board.
A good practice is to have written on the agenda the board's policy language (usually in BDDH or BDDH-AR) expressing that the board does not allow public complaints to be made against individuals. Read that statement out loud before the start of the public comment portion of the meeting.
"Speakers may offer objective criticism of district operations and programs but the board will not hear complaints concerning specific district personnel. The chair will direct the visitor to the appropriate means for board consideration and disposition of legitimate complaints involving individuals."
Board meetings are meetings of the board held in public, not meetings of the board with the public. There is no legal requirement for the school board to take public comment or input. The board is required to hold their meetings in public, where the public can observe discussions, deliberations and votes by board members on public business. It is good board practice to allow a time for public comment during regular board meetings once a month. Your board may have a policy that specifies the process to be followed and limits each speaker's time. It is not a good idea to engage the public in a discussion at this time. All comments should be directed to the chair. It is appropriate for the chair to direct the superintendent to answer any questions or concerns with the speaker at a later time. It may also be appropriate for the chair to refer the speaker to a policy regarding their question or concern.
If there is a topic about which the board wants to engage the public in discussion about or get input on, I recommend the board schedule a "listening session" and invite members of the public to attend and speak. You'll have a better chance of hearing from all sides if you advertise this session. Make clear the board's expectations for this session and inform attendees that the board will make decisions at a later school board meeting, not at the listening session. If all members of the board (or a majority) plan to attend the listening session, it should be posted as a special board meeting.
District staff can post the board actions in the minutes on the web page. What staff members can't do is 'campaign' for those resolutions using district resources or staff time. Recording the boards actions in the minutes and posting the minutes on the web page, as the staff does with all minutes, is not considered 'campaigning' - it is part of regular job duties recording the boards actions. Resolutions should be posted exactly as passed. If they were long that is fine, if they were short leave them that way, don't add any description or justification beyond the actual resolution.
District employees shouldn't do anything for these resolutions that they wouldn't do for any other board action. For example you shouldn't use district resources to type up flyers to be handed out at community activities, write a press release with arguments for and specifically about these resolutions, write a special article on the web page about these resolutions that promotes the reasons for them, or use staff time to make copies about these resolutions for board members to hand out at things they attend.
Staff members can do any of these advocacy projects if they do these on their own time and using their own resources.
Board members may campaign for these resolutions, write articles about them, and speak to groups about them as long as they don't use district resources in any way.
If the meeting was advertised by the superintendent as a meeting for the superintendent to discuss and gather information from the community and the board members attended and participated only as community members, the meeting does not need to be posted even if the full board or a quorum were to attend. If, however, board members all step to the front of the room and start discussing the topic or running the meeting and asking questions for their own information, I would say your situation had crossed the line and the meeting should have been stopped.
Be advised, however, that if the Board attends the meeting to gather "information that will serve as the basis of a subsequent decision or recommendation by the governing body, the meetings law will apply." Attorney General's Public Records and Meetings Manual, p. 115.
The court of public opinion is frequently as important as a court of law. If the public assumes that this was a way to avoid posting a public meeting, or there is suspicion about how your board conducts business, or the topic of the meeting is a particularly hot one that the board will soon be addressing and voting on at a board meeting, I recommend posting before gathering. We say "When in doubt, post it."
Then your issue becomes HOW to post it. This is not a board meeting, because the superintendent cannot call a board meeting. One approach is for the superintendent to advertise the meeting in the same places that board meetings are posted and, at the bottom of the announcement, state: "A quorum of the board may be in attendance at this meeting, but members of the board will not be discussing, deliberating, or making decisions. This meeting is for the superintendent to collect information from members of the public." Then stick to it -- no board member discussion.
As long as the chair and vice chair are not meeting as a committee to discuss and deliberate on district business that is under the board's jurisdiction and bring a recommendation to the board, it is not a meeting that must be posted. Agenda-setting falls under the category of "housekeeping topics," not a recommendation to the board on district business. Ultimately, the full board decides on the agenda when it is brought to a board meeting. Other things your small group can discuss include dates and times of meetings, room arrangements and other procedural decisions.
If you added the third member of a five-member board to the group or the fourth of a seven-member board, I would recommend posting the meeting, because there would be a quorum present, although the argument could still be made that they are not deciding policy or administration issues. As long as less than a quorum is present, there should be no need to post the agenda-setting session as a committee or board meeting. As the Attorney General's Public Records and Meetings Manual states: "A gathering of less than a quorum of a committee, subcommittee or advisory group or other governing body is not a 'meeting' under the Public Meetings Law."
Since the tape exists and is in the district's possession it is a public document which must be released when requested as long as the district has it. Once the district has made written minutes from the tape it must be kept for one year. After that it may be destroyed.
There is no legal requirement to allow public comment at all, or to limit it either to agenda items only, or to non-agenda items. Your policy BDDH may require it be held and spell out the specifics for your district. Many boards limit comment to agenda items but I have also observed boards who limit it to non-agenda items. The second case does not really make sense to me - I would think you would want to allow comment on agenda items. Some boards hold public comment twice, once at the beginning of the agenda and once at the end. One time is for agenda items, and the other for non-agenda items.
Most board just call the agenda item ‘public comment’, hold it at the beginning of the meeting, and take comments on both agenda and non-agenda items - even IF their policy says that they limit it to only agenda items. Someone who really wants to can relate almost anything they wish to an agenda item. Creativity knows no bounds.
In terms of 'good practice':
It is good practice to allow public comment, but to limit the amount of time for any one speaker, and to limit the total amount of time spent on public comment. This allows the board to proceed with their planned agenda and necessary work. Typical limits are 3 minutes per speaker, 30 minutes total for the session.
Public comment should be just that, and NOT a discussion with the board. The board should not answer questions on the spot unless they are very simple obvious ones regarding well established agreed on facts, but should refer questions to the administration or board chair for answer at a later time. If an initial answer by the board chair causes a follow up question then the chair should definitely refer the speaker to an administrator for further answers - the answer wasn't quite so obvious as seemed, or the speaker's intention is just to get the chair involved in a discussion.
The board should clearly state that they will not hear complaints against individuals in public, and that all complaints must go through the chain of command as spelled out in policy KL. This statement can be made in writing on the agenda, or by the board chair as an announcement at the beginning of the public comment session. Example:
"Speakers may offer objective criticism of district operations and programs, but the Board will not hear complaints concerning individual district personnel. The chair will direct the visitor to the appropriate means for Board consideration and disposition of legitimate complaints involving individuals.
The board should limit the public's participation to the public comment section of the agenda. There should not be cross discussion between the board and the public during other agenda items.
All public comment should be directed respectfully to the board through the chair. Comments should not be directed at any one individual board member.
The board should clearly explain the 'rules' for public comment in their policy - usually policy BDDH, in writing on the agenda or a handout, and verbally by the chair at the start of the public comment section of the meeting. It is common to ask each speaker to identify themselves by name, or name and address, and many boards ask that speakers fill out a form with basic contact information before they are recognized to speak. All of that should be covered in policy BDDH.
Minutes are not required by law to be signed by anyone - not the secretary, the superintendent, or the board chair - although it is traditional in many districts for one or more of those people to sign the minutes. Your district policy may specify how this should be handled. Once the minutes are approved by the board, they are the property of the board and a public record of the district, and it really doesn't matter who took the minutes, how they were taken, or whether they were signed. Some districts tape meetings, and those are not signed.
Boards do not have to put a notice of meetings in the newspaper and do not have to adopt a newspaper of record, although many boards adopt a newspaper of record at their organizational meetings each July. It is not required. (ORS 332.040 and 255.335(5))
Paid advertisement in local newspapers – or any other form of paid advertisement to notify the public about board meetings – is not required by law; however, you must notify interested parties, including newspapers, who request notice. (ORS 192.640).
OSBA recommends that you publicize meetings using notices to local news media and notices to interested parties who request notice.
Other ways that boards often publicize meetings:
Postings in school buildings and on the front door of the district office
Notices in building newsletters or publications
Posting on the district Web site
A yearly calendar of board meetings distributed by whatever method has proved to be most effective for that district.
The answer is slightly different for K-12, ESD and community college boards.
K-12 boards
Special meetings, including executive sessions, may be convened:
By order of the chair.
Upon request by three board members at least 24 hours before such a meeting is to be held.
By common agreement of the board members. (ORS 332.045)
ESD boards
Special meetings, including executive sessions, may be convened by common consent of the board members at least 24 hours before such a meeting is to be held. (ORS 334.100)
Community college boards
Special meetings, including executive session, may be convened:
By order of the chair.
Upon request by four board members at least 24 hours before such a meeting is to be held.
By common agreement of the board members. (ORS 341.283)
The key here is that the chair is still a ‘servant leader,’ which means that although the chair can call the meeting for a K-12 or CC board, he or she cannot force the other board members to attend or to discuss any particular item. A quorum (a majority of the board members) still must show up in order to hold a meeting. If a quorum is present, it can also approve a motion to immediately adjourn with no action or to change the agenda to remove the executive session or change or remove any item the group does not wish to discuss.
All meetings of governing boards such as school boards, and their sub- and advisory committees are subject to Oregon Public Meetings Law (ORS 192.610-192.710). The law applies to subcommittees and advisory committees delegated to advise a public body (usually the school board) but not when the committee’s only purpose is to advise an individual public official.
This means that committees formed by the board – whether they consist only of board members or consist of only non-board members – that report to the board with their advice, recommendations or decisions, are subject to public meetings laws. Committees formed by the superintendent, principal or other person in the district to advise them on their work are not subject to public meetings laws.
School councils under the Oregon Educational Act for the 21st Century are covered by the Public Meetings Law (ORS 329.704)
Search committees and screening committees formed in response to superintendent- or college-president vacancies, board policy and finance subcommittees and community-building committees that report to the board, are subject to the public meetings laws.
Confusion may occur when a committee is formed by the board to work with the superintendent or another administrator on a topic that the individual administrator will then report on to the board. Whose recommendation or advice is being reported? If the administrator is reporting only the committee’s recommendation, it is subject to the public meetings law. If the administrator may ignore the advice and report only her or his own recommendation, the committee is not subject to public meetings law.
Another confusing situation occurs if there is a quorum of board members on a committee formed by the superintendent to advise the superintendent. In this case, I would say post the meeting, because a quorum of board members is discussing district business. It can be posted as a committee meeting, not a board meeting.
A consent agenda generally groups several routine, noncontroversial items together to be voted on under one motion, rather than calling for multiple separate votes. The purpose of consent agendas is to help boards manage time so that they can focus on the most important matters. Appropriately used, the consent agenda frees board meetings from administrative details, repetitious discussion, and misdirected attention.
Advantages of using a consent agenda:
Allows more time for discussion of educational issues
Keeps the meeting flowing smoothly
Keeps the board from straying into operational and administrative areas
Requires board members to be well prepared
Disadvantages:
Public perception of "rubber-stamp" board
Lack of understanding of what it is and how to use it
Draws undue attention to items when they are removed from the consent agenda
Requires board members to be well-prepared
Items commonly on a consent agenda: treasurer's or financial report (if uneventful), personnel and employment recommendations, enrollment update, superintendent's report, curriculum and instruction reports, routine policy updates, minutes of previous meetings, committee reports, school calendars, confirmation of a decision discussed previously, routine correspondence.
Items on the consent agenda should be routine items that board members don't need any further information on prior to voting. Most boards allow consent agenda items to be removed from the consent agenda and discussed separately upon a board member's request.
The board chair and superintendent set the agenda together (Policy BCB and BDDC). They take suggestions from board members and add items they believe to be of importance and common interest. However, it is the board's agenda - that is, the agenda supported by a majority of the board members.
Some boards vote to approve the agenda as the first step at each meeting. This is the time when items may be deleted or added, by majority vote. Even if this is not the board's process, a board member may still make a motion to add or delete an item on the current agenda or to have an item added on a future agenda. The key here is that the motion must be made, seconded, discussed, and voted on. If the vote of the majority is to add the item to a future agenda, the chair and superintendent must do so. If the individual making the motion fails to obtain a second, or the majority does not support it, the item will not be added, and the members wanting to add an agenda item have reached the limits of their recourse.
The board may not discuss, deliberate, negotiate or vote on the superintendent's contract in executive session. A sub-committee of the board, even if it is only two individuals, would also be required to have the discussions in public at a posted committee meeting if they jointly make their recommendations to the board.
The Attorney General's Public Records and Meetings Manual, page 114, says "... if the committee members are instructed to make individual rather than group decisions or recommendations, the 'meetings' of the committee are outside the scope of the meetings law. This unquestionably is a difficult area of interpretation, and governing bodies are cautioned not to misuse the committee appointment process or decision-making process to subvert the policy of the Public Meetings Law."
Some things you might consider:
Have the board hold a public discussion of the general parameters for the new contract. The board can then authorize the board chair to have a conversation with the superintendent privately about those parameters and report back to the board at a future public session. A single individual (the board chair in this example) is not considered to be a committee.
Hire your board's attorney to negotiate the contract using the parameters that you set as a board in public session.
The board will still have to deliberate and vote in public session to make the final decision.
Superintendent evaluation can be held in executive session under ORS 192.660(2)(i) as long as the superintendent does not request that it be held in public. If your superintendent requests a public session, it must be held in public. The board has no further choice in the matter. Post it as an agenda item on the regular public agenda.
The executive session statute allows boards to evaluate the superintendent in executive session BUT it also says that the board can't discuss district goals during that time. Part of the CEO's responsibility is to assist in carrying out the district's goals and objectives, and they are responsible for program operation.
The statute that allows you to hold an the evaluation of the CEO in executive session is ORS 192.660(2)(i). It says "The governing body of a public body may hold an executive session to review and evaluate the employment related performance of the chief executive officer of any public body, a public officer, employee or staff member who does not request an open hearing."
The statute that limits that discussion is ORS 192.660(8) "A governing body may not use an executive session for purposes of evaluating a chief executive officer or other officer, employee or staff member to conduct a general evaluation of an agency goal, objective or operation..."
The important part of the statement above is `...general evaluation of an agency goal,..."
That word `general' is very important to what we are talking about here. The statute indicates that you can't stray from evaluation of the CEO in executive session. As long as you are evaluating the CEO on those items you agreed to evaluate on when you set up the evaluation process, including the CEO's role in making progress towards district goals, you are OK because you aren't just talking about the districts progress toward goals `in general', but specifically with regards to the CEO's role in achieving those goals. It is a fine line, but an important one.
Answer provided by Rebekah Cook, OSBA Staff Attorney...
In most cases, no. The Public Meetings Law only guarantees the public a right to monitor the school board meetings; it does not grant members of the public the right to interact with the school board during those meetings. Further, if the school board does allow public comments, it can impose procedural restrictions, including the requirement that the citizen comply with the District's complaint procedure.
The Board must follow District policy in hearing these personnel complaints or risk violating its public complaint policy, the Superintendent's contract and/or the District's collective bargaining agreement. In addition, the District should go into executive session to hear complaints against personnel that have been appropriately brought to the board. It should give the school employee notice of the executive session, the opportunity to bring legal representation and the option to have the complaint heard in open session. ORS 192.660(2)(b).
Per the Oregon Attorney General's Public Records and Meetings Manual "Free expression of opinion may not be exercised in an untrammeled fashion wherever and whenever and in whatever manner a person chooses, even on public property. Rules that relate to the order and decorum of public bodies, limitations on time allowed for persons to make presentations, requirements that no one may have the floor without securing permission from a presiding officer, and specific prohibitions against disturbing or disrupting a meeting are not uncommon. Conduct violating such rules provides grounds for ejecting persons from meetings or premises of public bodies." (Letter of Advice (OP-5468), July 13, 1983)
If the board is negotiating individual contracts with the administrative staff then those negotiations must be held in public session. Labor negotiations with the classified and certified staff are held in public unless both sides decide to hold them in executive session (see ORS 192.660(3)) under ORS 192.660(2)(d).
If board members want to discuss an administrator or staff member with the superintendent and that discussion may involve non-renewal then it may be held in executive session under 192.660(2)(b) discipline/dismissal AND the board MUST notify that administrator or staff member of the discussion and the administrator or staff member has the right to be there, may bring legal counsel and has the right to request the discussion be held in public.
For almost all situations where the board is discussing an employee in executive session the only way to do so is under 192.660(2)(b), discipline/dismissal/complaints, and the employee must be notified of the discussion, be permitted to be present, bring legal counsel and request the meeting be held in public if they wish.
If there is no issue of discipline/dismissal or complaints against the employee then the board has no reason to be discussing the employee at all. The superintendent recommends the renewal or non-renewal of staff members and that recommendation is voted on by the board in public. Oregon does not allow executive session for general 'personnel' discussions.
This is a question many boards raise at this time of year just before the statutory March 15th deadline for notification of non-renewal. The boards would like to discuss individual members of the staff 'in general' in executive session without the person there and without notifying the employee. For most situations this cannot be done legally. Some boards claim the 'exempt public records' exemption 192.660(2)(f) and others will claim 192.660(2)(h) if they have their attorney present. There may be some very narrow special situations where one of these two may apply, check with your attorney if you think your situation might be one of those.
There are no executive-session statutes that allow for general personnel discussions to occur in executive session. If it is a specific situation, it may be appropriate under ORS 192.660(2)(b), discipline and dismissal, although the employee must be notified and has the right to be present. It may also be possible to hear the information under ORS 192.660(2)(f) exempt public records. The specific nature of the circumstance will decide the issue. You should get advice from an attorney before proceeding.
ORS 192.660(2)(f), exempt public records allows for the hearing of the information specifically regarding the expulsion in executive session. The board should cover as much as possible in public session. To discuss the student's disciplinary record, the board should go into executive session, and, once that discussion is completed, the board should return to public session for the remainder of the transfer-request hearing. It is important to use the executive session only for discussing that which cannot be heard in public.
The chair should make every effort to end the public complaint against an individual immediately. This means using the gavel to demand the outburst end or recessing the meeting. It can be awkward to shut down a speaker, but it is important to do so in order to protect the rights of the staff member and limit the district's liability in the situation.
If using the gavel gains control of the situation, the chair can then explain WHY the board won't hear the complaint in public and instruct the individual in the proper steps, as outlined in policy KL. Some chairs keep copies of policy KL on hand to give to individuals who want to bring complaints.
It is possible (at least theoretically) to move immediately into executive session to hear the complaint, but that is dangerous, and I recommend you don't do it. The staff member being complained against may have the right to be notified about the hearing of the complaint, be present and have representation present. Going directly to executive session and hearing the issue would not allow those steps to be taken nor does it allow the administration to research the situation and present all the facts to the board. In addition, it sets a precedent that anyone who wants to make a complaint can get an immediate "audience" with the board.
A good practice is to have written on the agenda the board's policy language (usually in BDDH or BDDH-AR) expressing that the board does not allow public complaints to be made against individuals. Read that statement out loud before the start of the public comment portion of the meeting.
"Speakers may offer objective criticism of district operations and programs but the board will not hear complaints concerning specific district personnel. The chair will direct the visitor to the appropriate means for board consideration and disposition of legitimate complaints involving individuals."
This situation you describe is not uncommon in Oregon's small school districts. The legislature has recognized a difference in whether a vote would financially benefit a board member or his or her family members or an entire class of people. The legislature has allowed board members to vote on contract approval without stating an actual or potential conflict of interest, because contract approval applies to an entire group (classified or certified staff). (ORS 244.020(11)(b)) Board members should consider how this will be viewed by the public and consider abstaining in some circumstances.
If this was not a contract issue, but an issue involving the approval of hiring an individual closely related to three of five board members, the three would be required to declare an actual conflict of interest and refrain from discussion, deliberation, or voting on the matter. (ORS 244.020(1) and ORS 244.120) As you have noted, there would no longer be a quorum able to approve the hiring. In this situation, the law says that the board members may now declare the conflict, refrain from discussing and deliberating, and vote, so that the decision can be made by the board. (ORS 244.120(2)(b)(B))
Essentially in the case of a tie nothing happens - it is as if there was no motion and vote taken. Sometimes it is easier if we have a specific example...
Let's say the superintendent/president/chief exec asks the board to approve a new program.
The motion is to approve the program and it ties 3-3. So there is no approval - but it isn't denied either - the result is as if the board has taken no action.
Then there is a motion to deny the program. The vote again ties. The program is not denied - neither is it approved. It is as if the board never took up the issue.
An example occurred recently when the superintendent decided not to offer a coach a new contract for the next year. This was within the superintendent's duties, and did not require board approval. The board heard an appeal from the coach to over-ride the superintendent's decision. They split 3-3 on a motion to over-ride the superintendent's decision. Since the vote failed the superintendent's decision stood. The Board members went away and thought about it, came back the next week and tried a motion to support the superintendent's decision. It tied 3-3. The side that wanted his decision overturned argued that this meant his decision was overturned because the motion of support failed. Not true. It was simply that no action was taken - as if the board had never taken up the issue. The superintendent's decision continued to stand.
The topic may be brought up again at another meeting with no steps taken regarding reconsideration. Reconsideration is complicated and is used when a motion has passed or failed and then the board wants to re-vote it, generally at the SAME meeting. There are some technical rules we can get into for reconsideration if a follow up motion and vote is taken to restrict reconsideration but that is beyond your question. Also reconsideration is restricted if the result of the first vote is contractually binding action by the organization. Again......beyond the question.
Your tied motion can continue to be taken up again and again at the SAME meeting with no need to do anything about reconsideration because no successful vote was made and no action taken. However a smart chair will suggest putting a limit on that in the interest of time and frustration.
Proxy voting - an absentee ballot given to another board member to be voted by the board member in attendance, or by handing in the written ballot - is not allowed. The absent board member cannot give their vote to another board member on paper or verbally and have that serve as his/her vote.
However, board members may attend a meeting and vote by telephone as long as they are on a speaker phone and can be heard by the audience and the rest of the board, and they can hear the audience and rest of the board. In other words, they can meet the requirement of being 'present' by being live on a phone. They also count towards the quorum while they are on the phone.
Interestingly, the entire board could attend the meeting by phone, as long as there is a speaker phone at a location where the public can hear and participate in the meeting, and that all other rules for public meetings are followed.
It is confusing, and you are not alone. For a five-member board, at least three must vote yes to pass a motion, regardless of how many are present. This means that if three show up – that gives you a quorum because three of five are present – all three must vote yes to pass a motion.
If four show up for the meeting, then a vote of 3-1 will pass a motion.
If all five are present, a vote of 3-2 will pass a motion.
In each case, at least three members of a five-member board must vote yes to pass the motion, regardless of how many are present.
If you have a seven-member board, four must be present for a quorum and at least four must always vote yes for a motion to pass, regardless of whether there are four, five, six or seven members present.
Let’s use the example of a seven-member board. After one resigns, that leaves six remaining members. If all six vote on the replacement (that includes the board chair voting) you could have a split of 3-3, which is a deadlock. You can continue discussing the situation, consider other candidates, and re-vote as often as you wish. There is no option for breaking the tie by the chair or anyone on the outside. As long as you remain 3-3, there is no replacement. It requires four yes votes to put a new member on the board.
The board chair gets one vote each time, same as everyone else. If the board continues to deadlock on every vote for nominating for the new position - and every other item of board business that comes up - then you simply remain deadlocked and nothing can be done. It is up to the remaining six board members to work it out.
My recommendation is that you find a neutral third party who is acceptable to both sides and vote to put that person in as the new board member. Sometimes this can work when it is a former board member respected by everyone on the board or an individual who publicly states that he or she will not run for election when the interim placement ends.
Be sure that you hold all replacement discussions in public and, if you interview candidates for the position, do it in public.
The board member must state whether he or she has an actual or potential conflict of interest and describe 'the nature of the conflict' for the minutes. (ORS 244.120) If it is an actual conflict of interest (the board member or an immediate relative will benefit financially or avoid a financial detriment by the decision), the board member must not discuss or vote on the issue. If it is a potential conflict of interest (the board member might or might not benefit or avoid a detriment) he or she can continue to discuss and vote after announcing the potential conflict.
Last year the Oregon legislature passed new legislation regarding Oregon's ethics laws. Rules regarding this legislation are still being written and interpreted. Many of the details of how various parts of the law will be implemented are still uncertain.
OSBA has asked the Government Ethics Commission for clarification and interpretations on a number of ethics issues as they apply to school board members and employees. We do not know when we will receive a response from GEC. OSBA is advocating for flexibility for our member districts so they are able to continue with legitimate practices that facilitate their work as volunteers.
There is a pending lawsuit filed by a private lobbyist that could change the course of the legislation that created changes to ethics laws. Until there is more clarity, we advise our members to be very cautious in accepting meals or gifts of any kind from the district, vendors or any patrons related to your school district service.
The term "work session" is not covered by public meetings laws, which recognize two kinds of meetings: regular and special. The term work session has become popular to indicate a meeting at which the board does not intend to take any action. You have to post the work session as a regular or special meeting. (The former would go on the calendar you set in July; the latter would not be on the calendar you set in July).
Legally, the board is authorized to do whatever it does at other regular or special meetings.
Your community, however, may have expectations about a meeting described as a work session. If you have developed the expectation that no action will be taken at a work session and, out of the blue, you make an important or controversial decision at one, the community may be very upset, even if you haven't broken the law.
All meetings of the board must be held within district boundaries. See ORS 192.630.
The only exception is when the board is going to meet with another board. Then, the joint meeting must be held within the boundaries of one of the boards involved in the meeting.
If the meeting is for training only, it is not a board meeting and can be held outside of district boundaries. Be very careful, however: There cannot be any discussion of district business at the training. If there is discussion of or deliberation on district business, the training meeting is no longer a training meeting; it has become a board meeting - one that you are holding illegally.
OSBA is often asked to facilitate board retreats in the summer outside of the district boundaries for training only: we have seen that it is waaaaaay too easy for board members convening for training only to stray into forbidden board business. You will have a more successful session and look better to your community if your training is during a meeting that conforms to all public meeting laws - even if you fully intend to stick to training.
Essentially in the case of a tie nothing happens - it is as if there was no motion and vote taken. Sometimes it is easier if we have a specific example...
Let's say the superintendent/president/chief exec asks the board to approve a new program.
The motion is to approve the program and it ties 3-3. So there is no approval - but it isn't denied either - the result is as if the board has taken no action.
Then there is a motion to deny the program. The vote again ties. The program is not denied - neither is it approved. It is as if the board never took up the issue.
An example occurred recently when the superintendent decided not to offer a coach a new contract for the next year. This was within the superintendent's duties, and did not require board approval. The board heard an appeal from the coach to over-ride the superintendent's decision. They split 3-3 on a motion to over-ride the superintendent's decision. Since the vote failed the superintendent's decision stood. The Board members went away and thought about it, came back the next week and tried a motion to support the superintendent's decision. It tied 3-3. The side that wanted his decision overturned argued that this meant his decision was overturned because the motion of support failed. Not true. It was simply that no action was taken - as if the board had never taken up the issue. The superintendent's decision continued to stand.
The topic may be brought up again at another meeting with no steps taken regarding reconsideration. Reconsideration is complicated and is used when a motion has passed or failed and then the board wants to re-vote it, generally at the SAME meeting. There are some technical rules we can get into for reconsideration if a follow up motion and vote is taken to restrict reconsideration but that is beyond your question. Also reconsideration is restricted if the result of the first vote is contractually binding action by the organization. Again......beyond the question.
Your tied motion can continue to be taken up again and again at the SAME meeting with no need to do anything about reconsideration because no successful vote was made and no action taken. However a smart chair will suggest putting a limit on that in the interest of time and frustration.
The term 'resolution' is usually used to indicate a written statement, prepared in advance and available to the board to review before the meeting, which the board adopts. In simple terms it is a formal pre-written statement of the motion, usually preceded by the words "Resolved that..".
Robert's Rules of Order Newly Revised, 10th Edition says "For more important or complex questions, or when greater formality is desired, he presents the motion in the form of a resolution. The usual wording then is, `I move the adoption of the following resolution: Resolved, That..' A resolution of a long or complicated motion should be prepared in advance of the meeting, if possible, and should be put into writing before it is offered."
The chair can refuse to take a regular motion. There are certain special motions that the chair must take. Under parliamentary procedure, the usual reason that a chair would refuse a motion is that it is `out of order.' For example, a board member makes a new motion before the previous motion has been resolved. Or perhaps the motion is not relevant to the agenda item under discussion. However, there is no requirement for the chair to take a regular motion, so he or she can refuse for any reason or none at all. Any board member can then make a motion to over-rule the decision of the chair. The motion to over-rule the chair is one of the types of special motions that the chair must accept. If the motion to over-rule the chair is seconded and passes, then the decision of the chair is reversed and the original motion (the one the chair refused to take) must be heard.
It is confusing, and you are not alone. For a five-member board, at least three must vote yes to pass a motion, regardless of how many are present. This means that if three show up – that gives you a quorum because three of five are present – all three must vote yes to pass a motion.
If four show up for the meeting, then a vote of 3-1 will pass a motion.
If all five are present, a vote of 3-2 will pass a motion.
In each case, at least three members of a five-member board must vote yes to pass the motion, regardless of how many are present.
If you have a seven-member board, four must be present for a quorum and at least four must always vote yes for a motion to pass, regardless of whether there are four, five, six or seven members present.
Making a motion and amending it once before voting on the amended motion can usually be handled with no problem. But multiple amendments, retractions and attempts to amend can leave everyone clueless about what the board is actually voting on.
The chair should first accept a main motion, ask for a second and then clearly restate the motion. Once seconded, the motion belongs to the entire board and can only be amended by a vote of the board. In other words, five minutes into discussion of the motion, the original maker can't just say "Oh wait, I want to change my motion to …" and have that become the new motion.
Anytime before a final vote on the motion, it can be amended by any member of the board (including the original maker of the motion) as long as two conditions are met:
The motion must be directly related to the main motion ("germane")
The amendment must be seconded by another board member
When the motion to amend is made and seconded, the board must deal with the amendment before dealing with the main motion. The board must debate and vote on the amendment only - not the main motion. The board chair must keep everyone on the topic of the amendment. If a member begins to comment on the main motion, the chair should rule him or her out of order immediately. After debate, the chair calls for a vote on the amendment. If it passes, the chair restates the motion as amended and opens it up for debate. If the amendment fails, the chair states the motion as originally worded and the board debates the main motion.
Once you are back to a main motion, that motion can be amended and the cycle begins again until the main motion is finally voted.
While it is possible and allowable under Robert's Rules to have amendments of the second rank, also known as amendments to amendments, any board suffering confusion about motions and amendments is well advised to stick to one amendment at a time.
If the board allows only one amendment at a time, and the chair clearly states the full language of the motion, or motion to amend, before and after each vote, confusion can be minimized.
Julie Catala, board secretary for Corvallis School District 509J, has developed a simple
guideline (13k )
for making and amending motions. OSBA also has a guide to parliamentary procedures in the publications catalog
The limit for a K-12 board member chair is four successive years. (ORS 332.040)
The legislature set different rules for K-12, ESD and community college boards:
ESD board chairs can serve for no more than two years in succession. (ORS 334.100)
The statutes do not limit the number of years a community college board member may serve as chair. (ORS 341.283)
Betsy Says...
No, you only swear in newly elected board members before they assume the duties of office, usually at the first board meeting after July 1. They can be sworn in before July 1, and it doesn't have to be at a board meeting, but it should be made clear that their position is effective July 1. Who swears board members in, when they are sworn in, and the exact wording of the oath of office is left up to the local district. Sometimes, the oath of office is written in policy (BBBB). Some districts do swear in directors elected to a consecutive term, and some districts swear in all board members, even those in the middle of their term.
There are no statutory guidelines defining the process for selecting candidates to fill a vacant board position. Check your policies BBC and BBE to see if your district has a policy that specifies a process. If not, your board is free to develop its own process. Typically, it goes like this:
The board votes to accept the resignation and declare the seat vacant.
Citizens from the district are asked to submit their names or a letter of interest to the chief executive officer by a specified date.
The board screens the applicants and selects several of them to interview.
The board's interviews of candidates, discussion, selection and vote on a replacement must be held in a public meeting and meeting minutes must record each board member's name and vote.
The person selected serves until the June 30 following the next regular district election. At that election, someone is elected to serve either the unexpired portion of the four-year term or a new four-year term.
See ORS 332.030.
Answer provided by Rebekah Cook, OSBA Staff Attorney...
In most cases, no. The Public Meetings Law only guarantees the public a right to monitor the school board meetings; it does not grant members of the public the right to interact with the school board during those meetings. Further, if the school board does allow public comments, it can impose procedural restrictions, including the requirement that the citizen comply with the District's complaint procedure.
The Board must follow District policy in hearing these personnel complaints or risk violating its public complaint policy, the Superintendent's contract and/or the District's collective bargaining agreement. In addition, the District should go into executive session to hear complaints against personnel that have been appropriately brought to the board. It should give the school employee notice of the executive session, the opportunity to bring legal representation and the option to have the complaint heard in open session. ORS 192.660(2)(b).
Per the Oregon Attorney General's Public Records and Meetings Manual "Free expression of opinion may not be exercised in an untrammeled fashion wherever and whenever and in whatever manner a person chooses, even on public property. Rules that relate to the order and decorum of public bodies, limitations on time allowed for persons to make presentations, requirements that no one may have the floor without securing permission from a presiding officer, and specific prohibitions against disturbing or disrupting a meeting are not uncommon. Conduct violating such rules provides grounds for ejecting persons from meetings or premises of public bodies." (Letter of Advice (OP-5468), July 13, 1983)
The chair can refuse to take a regular motion. There are certain special motions that the chair must take. Under parliamentary procedure, the usual reason that a chair would refuse a motion is that it is `out of order.' For example, a board member makes a new motion before the previous motion has been resolved. Or perhaps the motion is not relevant to the agenda item under discussion. However, there is no requirement for the chair to take a regular motion, so he or she can refuse for any reason or none at all. Any board member can then make a motion to over-rule the decision of the chair. The motion to over-rule the chair is one of the types of special motions that the chair must accept. If the motion to over-rule the chair is seconded and passes, then the decision of the chair is reversed and the original motion (the one the chair refused to take) must be heard.
The limit for a K-12 board member chair is four successive years. (ORS 332.040)
The legislature set different rules for K-12, ESD and community college boards:
ESD board chairs can serve for no more than two years in succession. (ORS 334.100)
The statutes do not limit the number of years a community college board member may serve as chair. (ORS 341.283)
The answer is slightly different for K-12, ESD and community college boards.
K-12 boards
Special meetings, including executive sessions, may be convened:
By order of the chair.
Upon request by three board members at least 24 hours before such a meeting is to be held.
By common agreement of the board members. (ORS 332.045)
ESD boards
Special meetings, including executive sessions, may be convened by common consent of the board members at least 24 hours before such a meeting is to be held. (ORS 334.100)
Community college boards
Special meetings, including executive session, may be convened:
By order of the chair.
Upon request by four board members at least 24 hours before such a meeting is to be held.
By common agreement of the board members. (ORS 341.283)
The key here is that the chair is still a ‘servant leader,’ which means that although the chair can call the meeting for a K-12 or CC board, he or she cannot force the other board members to attend or to discuss any particular item. A quorum (a majority of the board members) still must show up in order to hold a meeting. If a quorum is present, it can also approve a motion to immediately adjourn with no action or to change the agenda to remove the executive session or change or remove any item the group does not wish to discuss.
The chair should make every effort to end the public complaint against an individual immediately. This means using the gavel to demand the outburst end or recessing the meeting. It can be awkward to shut down a speaker, but it is important to do so in order to protect the rights of the staff member and limit the district's liability in the situation.
If using the gavel gains control of the situation, the chair can then explain WHY the board won't hear the complaint in public and instruct the individual in the proper steps, as outlined in policy KL. Some chairs keep copies of policy KL on hand to give to individuals who want to bring complaints.
It is possible (at least theoretically) to move immediately into executive session to hear the complaint, but that is dangerous, and I recommend you don't do it. The staff member being complained against may have the right to be notified about the hearing of the complaint, be present and have representation present. Going directly to executive session and hearing the issue would not allow those steps to be taken nor does it allow the administration to research the situation and present all the facts to the board. In addition, it sets a precedent that anyone who wants to make a complaint can get an immediate "audience" with the board.
A good practice is to have written on the agenda the board's policy language (usually in BDDH or BDDH-AR) expressing that the board does not allow public complaints to be made against individuals. Read that statement out loud before the start of the public comment portion of the meeting.
"Speakers may offer objective criticism of district operations and programs but the board will not hear complaints concerning specific district personnel. The chair will direct the visitor to the appropriate means for board consideration and disposition of legitimate complaints involving individuals."
The superintendent can meet behind closed doors with a board member. The superintendent can meet with any member of the public behind closed doors, and board members are members of the public.
If the matter discussed is district business that the board can act on, and the board member discusses it with each other board member in turn, a serial meeting will have been held, and that's a meeting that should have been held in public. However, I would say that the details of such situations have a bearing on whether they are entirely appropriate. It is OK for the superintendent to call or talk with (even behind closed doors) each board member individually on a topic of board business.
The law has an exemption for training events and conferences. You can have meals together, but you shouldn't discuss or deliberate on district business directly. You can talk about things you have heard while at the conference, but keep them general, and don't move into discussion of the direct implication for your district. An example would be talking about what you heard at the workshop and concluding by saying "this would make a good agenda item for discussion at a board meeting about how we can apply it in our district."
Writing a letter or position paper by the board on a topic of district business is definitely board work that must follow public meetings laws. This constitutes a discussion of business, even if you later vote to approve the final document at a public meeting.
The use of e-mail should be limited to one-way dissemination of information requiring no response. In other words, the chair can send each board member an initial draft by e-mail. The editing discussion of that draft needs to occur at a public meeting. Be aware that the initial draft - just like any other e-mail between board members - is a public record.
This situation you describe is not uncommon in Oregon's small school districts. The legislature has recognized a difference in whether a vote would financially benefit a board member or his or her family members or an entire class of people. The legislature has allowed board members to vote on contract approval without stating an actual or potential conflict of interest, because contract approval applies to an entire group (classified or certified staff). (ORS 244.020(11)(b)) Board members should consider how this will be viewed by the public and consider abstaining in some circumstances.
If this was not a contract issue, but an issue involving the approval of hiring an individual closely related to three of five board members, the three would be required to declare an actual conflict of interest and refrain from discussion, deliberation, or voting on the matter. (ORS 244.020(1) and ORS 244.120) As you have noted, there would no longer be a quorum able to approve the hiring. In this situation, the law says that the board members may now declare the conflict, refrain from discussing and deliberating, and vote, so that the decision can be made by the board. (ORS 244.120(2)(b)(B))
Last year the Oregon legislature passed new legislation regarding Oregon's ethics laws. Rules regarding this legislation are still being written and interpreted. Many of the details of how various parts of the law will be implemented are still uncertain.
OSBA has asked the Government Ethics Commission for clarification and interpretations on a number of ethics issues as they apply to school board members and employees. We do not know when we will receive a response from GEC. OSBA is advocating for flexibility for our member districts so they are able to continue with legitimate practices that facilitate their work as volunteers.
There is a pending lawsuit filed by a private lobbyist that could change the course of the legislation that created changes to ethics laws. Until there is more clarity, we advise our members to be very cautious in accepting meals or gifts of any kind from the district, vendors or any patrons related to your school district service.
The board member must state whether he or she has an actual or potential conflict of interest and describe 'the nature of the conflict' for the minutes. (ORS 244.120) If it is an actual conflict of interest (the board member or an immediate relative will benefit financially or avoid a financial detriment by the decision), the board member must not discuss or vote on the issue. If it is a potential conflict of interest (the board member might or might not benefit or avoid a detriment) he or she can continue to discuss and vote after announcing the potential conflict.
As long as the chair and vice chair are not meeting as a committee to discuss and deliberate on district business that is under the board's jurisdiction and bring a recommendation to the board, it is not a meeting that must be posted. Agenda-setting falls under the category of "housekeeping topics," not a recommendation to the board on district business. Ultimately, the full board decides on the agenda when it is brought to a board meeting. Other things your small group can discuss include dates and times of meetings, room arrangements and other procedural decisions.
If you added the third member of a five-member board to the group or the fourth of a seven-member board, I would recommend posting the meeting, because there would be a quorum present, although the argument could still be made that they are not deciding policy or administration issues. As long as less than a quorum is present, there should be no need to post the agenda-setting session as a committee or board meeting. As the Attorney General's Public Records and Meetings Manual states: "A gathering of less than a quorum of a committee, subcommittee or advisory group or other governing body is not a 'meeting' under the Public Meetings Law."
All meetings of governing boards such as school boards, and their sub- and advisory committees are subject to Oregon Public Meetings Law (ORS 192.610-192.710). The law applies to subcommittees and advisory committees delegated to advise a public body (usually the school board) but not when the committee’s only purpose is to advise an individual public official.
This means that committees formed by the board – whether they consist only of board members or consist of only non-board members – that report to the board with their advice, recommendations or decisions, are subject to public meetings laws. Committees formed by the superintendent, principal or other person in the district to advise them on their work are not subject to public meetings laws.
School councils under the Oregon Educational Act for the 21st Century are covered by the Public Meetings Law (ORS 329.704)
Search committees and screening committees formed in response to superintendent- or college-president vacancies, board policy and finance subcommittees and community-building committees that report to the board, are subject to the public meetings laws.
Confusion may occur when a committee is formed by the board to work with the superintendent or another administrator on a topic that the individual administrator will then report on to the board. Whose recommendation or advice is being reported? If the administrator is reporting only the committee’s recommendation, it is subject to the public meetings law. If the administrator may ignore the advice and report only her or his own recommendation, the committee is not subject to public meetings law.
Another confusing situation occurs if there is a quorum of board members on a committee formed by the superintendent to advise the superintendent. In this case, I would say post the meeting, because a quorum of board members is discussing district business. It can be posted as a committee meeting, not a board meeting.
All meetings of the board must be held within district boundaries. See ORS 192.630.
The only exception is when the board is going to meet with another board. Then, the joint meeting must be held within the boundaries of one of the boards involved in the meeting.
If the meeting is for training only, it is not a board meeting and can be held outside of district boundaries. Be very careful, however: There cannot be any discussion of district business at the training. If there is discussion of or deliberation on district business, the training meeting is no longer a training meeting; it has become a board meeting - one that you are holding illegally.
OSBA is often asked to facilitate board retreats in the summer outside of the district boundaries for training only: we have seen that it is waaaaaay too easy for board members convening for training only to stray into forbidden board business. You will have a more successful session and look better to your community if your training is during a meeting that conforms to all public meeting laws - even if you fully intend to stick to training.
