LEGAL BRIEF

The Rights (and Challenges) of Minority Board Factions

By Nancy Krent/School Administrator, May 2015
 
Ideally, school boards function as cohesive groups, with each member contributing opinions and expertise in a respectful manner. While many boards function this way, the incivility that plagues our national government has crept into the operations of many local school boards.
    Increasingly, individual board members are asking what rights they have against an intransigent majority, and board majorities are seeking assistance to defuse the disruption caused by an angry dissident member.
    Few states have laws that require good behavior by board members during board meetings. No penalty exists in most places for a board member who breaches the confidentiality of a closed session or who actively disrupts a public session. However, practical remedies exist for some of these situations.
    If the board, for instance, has a problem with leaks of sensitive information, a board committee can be appointed to oversee certain matters, with more limited reports given to the full board. When a member becomes disruptive at a public meeting, the president may reprimand the member, and the other members may continue to transact business, even if it means speaking over or ignoring the disruptive member. While this may make the meeting appear chaotic, it often will work after a few difficult sessions, especially if community members or news media begin to report on the shenanigans of the disruptive member. However, if the community believes the dissident member is expressing a valid concern that a more callous majority is overlooking, this tactic can backfire, quite badly, on the board majority.

Information Demands

One area in which conflict frequently arises is access to information. Minority board members often complain the majority is withholding information, especially details critical of the administration or something reflecting badly on the majority’s policies. Individual board members have filed Freedom of Information Act requests and even lawsuits to compel disclosure of information they believe is necessary for an informed vote on an issue or informed staff oversight. Because this is governed by each state’s FOIA laws, legal counsel should be consulted regarding these requests.
    In addition, each board member retains First Amendment rights and is entitled to comment on board actions with which the member disagrees. What the member may not do, however, is purport to speak for the board or suggest he or she is acting with board authority in public remarks if the board has not granted that authority.
    One fundamental principle of board governance is that the board functions as an entity and individual board members do not have independent power and authority to act for the board unless state law provides otherwise.
    At times, individual members’ actions might affect their ability to vote on subsequent actions. In a Seventh Circuit case, the court held that a board member who makes public statements about the outcome of a matter prior to the hearing on the matter may be constitutionally biased and his participation in the process could deny the staff member his right to due process.

Liability Risks

Sometimes, individual board members’ comments create such a risk of potential liability that the board as a whole must act to disavow the statements. Illinois newspapers recently reported that, during a superintendent search, a board member publicly stated she would not hire a gay superintendent. Because this violates Illinois’ anti-discrimination laws and the board’s own policies, the board majority publicly adopted a resolution, quoting their policies, rejecting the individual member’s statements and re-affirming their commitment to equal employment opportunity.
    As noted above, some answers exist for both sides regarding individual members’ rights and responsibilities. However, when a board gets to the point of having to ask these questions, it already is in trouble — a clear sign the board must work on its dynamics and governance, usually with outside help, to rebuild trust and respect among board members.

 
Nancy Krent is a law partner with Hodges, Loizzi, Eisenhammer, Rodick & Kohn in Arlington Heights, Ill. E-mail: nkrent@hlerk.com