In the Aug. 20, 2012 issue of On Board, we provided you with a cautionary list of “don’ts” as school board members. In this article, we focus on a number of “do’s” from both a legal and practical perspective.
1. Take and uphold the board member oath of office.
New board members must take the following oath:
I do solemnly swear (or affirm) that Iwill support the Constitution of the United States and the Constitution of the State of New York, and that I will faithfully discharge the duties of office of school board member according to the best of my ability.
What, specifically, are “the duties of office of school board member”? The essential duties of the board of education are detailed in Sections 1604, 1709 and 1804 of the Education Law, but a more readable summary can be found in sections 2:67 through 2:83 of the 33rd edition of School Law, a handbook and CD-Rom produced by NYSSBA and the New York State Bar Association.
[Editor’s Note: The 34th edition of School Law will be published in October and will be available at www.lexis-nexis.com/schoollaw.] The refusal or neglect of a school board member to file an oath of office within 30 days after commencement of term of office causes the office to become vacant.
2. Be mindful of conflicts of interests.
Generally, conflicts of interest exist where municipal officers, including school board members, are in a position to benefit personally from a decision made in their official capacity. Personal interests which are prohibited by law include:
(a) Interest in a contract with the school district where a board member has the power or may appoint someone who has the power to negotiate, authorize or make payment or audit bills or claims under the contract, unless otherwise exempted under law.
(b) Interest of a chief school officer, treasurer or his/her deputy or employee in a bank or other financial institution that is used by the school district he/she serves.
There are exceptions to the general conflicts of interest rule, however. For instance, the Commissioner of Education ruled in the Appeal of Vivlemore that a conflict does not exist if the board member is merely an employee of the entity that has a contract with the school district provided that the board member’s “compensation is not contingent” on the contract. You should be certain to disclose to your board any potential conflict of interest to avoid even the appearance of impropriety. If you are uncertain if you have a conflict of interest, you should identify the issue to your board president and, if your president agrees, consult your school attorney.
3. Be aware of technical requirements when appointing a teacher related to a board member by blood or marriage.
The mere relationship of a school board member to a candidate for a teaching position does not create a prohibited conflict of interest per se. Nevertheless, the board must comply with specific technical requirements to ensure the appointment is valid and not subject to rescission by a court at a later date.
In our experience, many board members are unaware of these requirements. They are surprised or embarrassed subsequent to the hiring of a relative because they failed to disclose the relationship prior to deliberating and voting on that appointment.
The legal and technical requirements are quite simple. First, if you are going to consider the appointment of a relative by blood or marriage to a teaching position, then you must disclose the relationship. Second, the law requires a two-thirds “supermajority” vote of the entire board (not a simple majority), for the appointment to be effective. Third, if the person is a relative and you have made the disclosure, you are not required to abstain and you can vote on the appointment.
4. Learn your board’s parliamentary procedure and rules of order.
Although not required by law, many boards use Robert’s Rules of Order. Decisions on whether to use Robert’s Rules or some variation of it should be made by board policy. Review your district’s policy and become familiar with the policy or rules of order adopted by your board. Your effective participation in board meetings will depend on your ability to navigate the rules that apply to, among other aspects of the meeting functions, motions, debate and voting.
5. Familiarize yourself with your school district’s board agenda procedures.
Boards are not legally required to use formal board agendas. Typically, school district policy addresses this topic. With respect to regular meetings, items may typically be added or deleted by motion at the meeting, however, you should be aware of your school district policy. With special meetings, boards may adopt rules or policies limiting business at special meetings and setting limits on items on the agenda [see the commissioner’s ruling in Appeal of Mullholland (1993)].
Any member of a board has the authority to call a special meeting of the board, [Matter of Felico (1980)] as long as notice of the meeting is given to other board members at least 24 hours in advance. Notice provided normally states the purpose of the meeting. The law requires good faith efforts to give actual notice
of a special or emergency meeting to each board member [Matter of Colasuonno (1982)].
6. Remember all meetings of a quorum of the board, including work sessions, study sessions or budget workshops, are subject to the Open Meetings Law.
Because “work” or “study” (or agenda, planning, review, etc.) sessions and similar gatherings of a board are
“meetings” even if no action is taken at them, they are governed by the Open Meetings Law. In addition, general discussions concerning budgets and personnel matters not related to a particular person must be done in an open session.
7. Understand the process to lawfully enter into executive session.
While the Open Meetings Law holds that all meetings of a quorum of school board members should be open to the public, it provides for exceptions. In order for the board to enter into a proper executive session, the board must have first lawfully called to order a meeting of the board of education. Proper notice of the meeting must be provided to the public at large. The board must adopt a specific motion to enter into an executive session for an enumerated purpose, such as discussion of proposed, pending or current litigation. It is improper to vote to enter an executive session to discuss topic A and then move to topics B and C unless those topics were appropriately covered by the motion to enter executive session.
There is no legal requirement to enter executive session to discuss certain topics specified in the law, such as “matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person.” At the same time, often it is in the interest of all concerned to take advantage of the option to discuss some subjects behind closed doors before taking action in public.
The purpose of the executive session is to discuss confidential information that is deemed appropriate for private discussion leading to what will ultimately become a public determination. Remember, with certain exceptions, school boards generally may not take action in executive sessions. In other words, with few exceptions, boards must vote in public session [see the Court of Appeals’ ruling in Sanna v. Lindenhurst Board of Education (1982)].
Editor’s Note: For more information on the wording of motions to enter executive sessions, look for an article by the New York State Association of School Attorneys in the Oct. 15, 2012 issue of On Board.
Members of the New York State Association of School Attorneys represent school districts and BOCES. This article was written by Joseph G. Shields of the East Syracuse law firm of Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.