OXFORD – Members of Oxford’s school board got a refresher course in their legal roles and responsibilities Monday night from the district’s legal counsel.
John Lynch of Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP spent nearly two hours fielding questions from board members and district administrators on a variety of topics, some of which had been submitted in writing in advance of the meeting.
One of the first items discussed centered on the legalities of community members talking about specific employees during public comment. The underlying legal issue, Lynch explained, is the “curtailment of right of free speech.”
If the board allows positive comments about an employee’s performance, they “cannot then cutoff any remarks that (they) might find negative,” he said. “Your concern is about limiting the free speech rights of that individual. ... You cannot discriminate on the basis of viewpoint.”
Lynch said, however, that the board is within their legal rights to allow a limited time for people to speak, nor do they have to tolerate any vulgarity or profanity. They can also limit public comment to items included on the agenda if they so choose.
“You control the agenda,” he said. “If you eliminate both sides of the question, then you are ... within your rights.”
Citing a recent federal decision, he added that the board was also within their rights to cut off an individual who had already made his opinion known on a particular topic.
Using the proper names of a student is another matter, he said, as special education students and disciplinary cases are protected by the federal Family Educational Rights and Privacy Act.
The attorney also advised the board that some topics might be better handled by inviting the individual community members to speak their piece, such as issues about a particular employee, in executive session.
“It’s listening that is the important thing,” he said. “Their performance and what you are going to do about it is a perfect executive session topic.”
According to Lynch, who is invited in and how long they stay are entirely at the board’s discretion.
The counselor also advised against engaging community members in debate during public comment, because it could escalate the situation.
“It’s a meeting in public, not a meeting with the public,” he explained. Nor is public comment a legal requirement of an open meeting.
“You don’t have to have an open forum as part of your meeting. That’s a courtesy,” he said.
Lynch also responded to a submitted question about whether or not the district had any legal recourse against public misrepresentation by the media.
“If it’s just an editorial twist or spin to an article and you don’t like it, them’s the breaks,” he advised.
The discussion then turned to petitions, and the board’s legal and ethical responsibilities in that regard.
“Live according to the law,” he recommended, accepting the petitions they are required to and setting aside the rest. “In the strictest legal sense,” however, petitions are officially those calling for a vote on a particular issue. One circulated by community members to present an opinion, are just that, a matter of opinion and should be accepted as such, he explained. “These people have decided to express their opinion in writing,” just as if they had stood and spoken during public comment.
Board Member Mary Branham raised concerns that some people in the community don’t believe that the board is listening, simply because they are not conceding to their opinion.
“‘No’ is a legitimate response to any question,” Lynch said. “Reasonable minds can differ.”
The counselor also cautioned the board members about allowing district employees to voice issues either to them individually or during public comment if they have not followed the grievance procedures laid out in their collective bargaining agreement.
“They are doing an end run around everything that was bargained for,” he explained. “There are agreed upon steps ... for unionized workers and it’s just bad form to go around it.”
Lynch also touched upon the issue of board members abstaining from a vote, and whether a justification needed to be included in the minutes. It did not, he said, but advised the board to abstain “rarely” as on a five member board an abstention often acted as a no vote.
“Folks elected you to make decisions,” he said. “You have to make decisions.”
Board member Peter Heggie, who assumed his seat on July 1, defended his decision to abstain from a vote during the district’s re-organizational meeting on July 13, saying that he felt he did not have all the information he needed to make the decision.
“It’s my right to vote ‘nay’ or abstain,” he said.
Using the analogy that a school board as more akin to a corporate board than a legislative body, Lynch explained that the board only had authority when it was together.
“You do not represent a separate constituency,” he reported. “You represent the district as a whole body.”
He advised individual board members never to commit to a course of action on their own, and to avoid the appearance of impropriety by not meeting as a group outside of publicized board meetings.
He also discussed the legal role and responsibilities of board members entering school buildings. Reading directly from school law, Lynch explained that board members needed to follow “district procedures as they apply to the public in general.” When they are acting in an official capacity however, they need the approval of the full board.
Instead of any single board member undertaking a personal fact-finding mission, he recommended the board designate someone to gather information to share with the board as a whole.
“This is really tough stuff,” Lynch said at one point during his discussion, explaining that he was answering each questions from a general legal perspective rather than addressing any individual issues. He recommended that the board should consult his office before taking action on any particular matters.