Congratulations on your election or appointment to your school district’s board of education. You are embarking on a journey of personal commitment, substantial service and meaningful experience. During innumerable meetings, your interactions with your colleagues on the board will, in many ways, define your experience as a board member as well as your contribution to your school district. To avoid distress and make the most of your opportunities, we offer a few cautions:
Don’t assume that you have any authority independent of your fellow board members. As a matter of law, boards of education are corporate bodies that have the authority only to act collectively and, more specifically, only with a quorum of the group present. Individual board members have no authority to act for the board, unless the board delegates some duty to the individual board member (Matter of Bruno, 1964). This means that you will not have the ability to direct school personnel or change or modify any aspect of the school district’s operations by yourself. Rather, you will need to rely on your abilities to review information, think clearly, articulate your positions, and persuade your colleagues on the board. This is an important feature of board work – it has the advantage of group process in decision-making. Accordingly …
Don’t be afraid to voice your opinion. When participating in meetings, you may find your colleagues voicing a singular, unified opinion with regard to an issue. Although it’s natural to want to be silent, especially as a new board member, don’t be reluctant to speak up. You should feel free to voice – constructively – a different or dissenting opinion or question the rationale for the prevailing opinion. Deliberation is an essential part of board work. It may be that others have not thought of your ideas or considered your position, or failed to see some of the negative consequences of the current group position.
When it comes time to vote, simply vote your conscience on the question at hand. In rare cases in which board members have failed to do this, there have been big consequences. A pattern of behavior involving excessive absence, abstaining or failing to vote responsibly on the merits of a question can be viewed as violation of your oath of office and grounds for removal. For instance, the commissioner of education removed a school board member from office after finding, among other things, that he voted “no” in 12 board meetings on all tenure appointments that came before his board because he did not believe any teacher in any school district should be granted tenure rights (Appeal of Hoefer, 2005). In a prior decision, the commissioner held that “the state has an important, substantial interest in ensuring that members of boards of education fulfill their constitutional oath of office and carry out their official duties in accordance with the law, by requiring a board member to base his or her vote, whether that be a vote in favor, against or an abstention, solely upon such board member’s assessment of the individual merit of each teacher recommended for tenure” (Conetta v. Bd. of Educ., 1995). Essentially, you should reserve abstentions for the few times when you have a conflict of interest. And remember that vigorous debate is key to sound decision-making. However, at the same time …
Don’t let your disagreements with other board members or the public get personal. There are few things more disheartening to a community than a public body whose members fail to act respectfully toward each other and/or community members. Personal squabbles interfere with objective thinking, can be polarizing within the board and community, and reflect poorly on everyone. Also, board members serve as role models for the district’s students. (Some high school students are required to observe board meetings in their “participation in government” classes.) Accordingly, board members should present students with sound behavioral models for group interaction and governmental function. Finally, the law requires that each board of education adopt a code of ethics by which its members are governed. These ethical codes typically include behavioral expectations, including respectful communication. The commissioner of education has held that, within a board member’s oath of office, there is “a duty to proceed with constructive discussions aimed at achieving the best possible governance of the school district.” When a board member’s conduct interferes with the board’s ability to function, that board member may be removed from office (Appeal of Kozak, 1995). Make sure you have reviewed your board’s ethical code and understand the behavioral expectations it embodies. And while we are on the topic of ethics …
Don’t disclose confidential information. Board work is different than other community service you may have performed in the past. Because boards are governmental bodies, they are required under the state Open Meetings Law to provide the public with advance notice of their meetings and to conduct those meetings in a time, place and manner that permits the public to attend and watch. This is often referred to as “government in the sunshine.” However, the Open Meetings Law recognizes that there are certain subjects that boards should be able to discuss in private, out of the public eye. Such matters as collective bargaining, pending litigation, personnel matters involving a specific employee, or issues involving a particular student are often better discussed in private to protect the privacy of the individuals being discussed. Other reasons include protecting a negotiation/litigation position or strategy of the district, and to promote an honest, open exchange among board members, free from considerations of public reaction, with regard to what a board member might voice with regard to these important matters. This is accomplished by a board moving into an executive session (a private meeting out of the public’s view and hearing).
General Municipal Law section 805-a imposes a duty on public officials to keep confidential information confidential. It is now settled law that board members are required to keep matters discussed in executive session confidential and it is equally settled law that board members can be removed from office for violating that confidentiality (Appeal of Nett and Raby, 2005).
In addition, such leaks can create liabilities for the school district, compromise its position in contract negotiations or litigation, and, perhaps of greatest consequence, prevent board members from speaking their minds. If I know what I am saying will not be held in confidence, I will not speak frankly. The greatest victim of the breach of the duty of confidentiality is the death of candor. Remember the starting point for this article: boards have the advantage of group decision-making and the power of differing perspectives. Your behavior as a board member should support those differing perspectives, and your trustworthiness and ability to maintain confidences is a critical component of that support.
Avoiding these pitfalls is essential to preventing dysfunction and will help build productive, trusting relationships with your board colleagues. Here are some “dos” consistent with the “don’ts” above:
- DO understand that your role is one of shared responsibility with your fellow board members. Embrace their ideas and give them fair consideration and critical examination.
- DO share your ideas, ask questions and deliberate constructively with your fellow board members.
- DO respect views of your colleagues and accept the consideration and critical examination that your ideas receive with grace and appreciation.
- DO maintain confidences.
In the next issue of On Board, we will offer a more extensive list of “dos” for board members to help you make the most of this vital form of public service.
Members of the New York State Association of School Attorneys represent school districts and BOCES. This article was written by Donald E. Budmen of the East Syracuse law firm of Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.