Ten Practices to Avoid Liability

1. Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly B. Moyher, Senior Staff Attorney Connecticut Association of Boards of Education

2. The presenters gratefully acknowledge the work of the NSBA Council of School Attorneys “A School Law Primer” on which this presentation is based.

3. 1: Know the Boundaries of Your Authority Authority of boards derived from state constitution statutes administrative provisions

4. State statutes delegate oversight of public education to local and/or regional boards Local boards hold express and implied powers Courts reluctant to interfere with board decisions, but will invalidate any board action that is: arbitrary capricious or outside the board’s legal authority

5. 2: Focus on the Board’s Policy Making Role •Boards are policy-making bodies responsible for establishing rules and procedures •State and federal law mandate certain policies and procedures generally allow the school board to determine the specific details

6. Board policy •Guides day-to-day administrative decisions •May address issues of importance not mandated by law Distinction between the policy-making role of the board and the administrative role of the superintendent is not always clear.  some states clarify the roles in statute

7. The board’s role concerning violence in school and school security • Board responsible for ensuring schools are safe for students, teachers and staff • Instructional programs to educate students about alternate, non violent conflict resolution/change in culture • Audit safety and discipline policies • Effective safety and crises response program

8. Addressing mental health issues in the school environment • Coordinate with Department of Mental Health and other local resources • With tight budgets, school psychologists, social workers and other behavior experts are often the first to be cut • Staff training to engage and work with students and families affected by mental illness • The summer conference has a “student mental health” discussion

9. Working with the community to ensure school security • A single policy is not the advocated approach – one size doesn’t fit all • Align emergency management plan with all hazards approach • District must collaborate with emergency personnel community partners to establish an all-hazard approach • Ensure policies and plans are well publicized to parents, visitors and public

10. 3: Adhere to Student Discipline Policies • Boards set codes of conduct and sanctions • Courts defer to school officials if rule relates to legitimate school concerns • Policies upheld by courts if • clear and understandable • fair notice to students •  rational relationship between rule • and educational purpose

11. Student discipline - decisions • Board becomes involved when necessary to expel a student • Board acts as impartial decision-maker

12. 4: Understand the Staff Discipline Process • Board or superintendent has authority • to suspend or terminate staff • Usually terminated for •  budgetary reasons •  misconduct •  incompetence, or now ineffectiveness

13. Suspension without pay or termination • Requires due process • Amount of process depends on  potential disciplinary sanction employment status or classification of employee  applicable law, regulations, policies or employment contract

14. 5: Review and Adhere to Policies on Holiday Celebrations • Establishment Clause vs. Free Speech Rights • Holiday traditions are part of our culture; however, proselytizing on behalf of any religion is prohibited – A very fine line! • Secular symbols • Promote understanding of cultural and religions differences • Make sure staff, students and the community are familiar with school policies

15. 6. Be Familiar with the Laws Governing Board Meetings • Board must act as a body • Individual members not empowered to make policies or perform official acts

16. What constitutes a meeting? • Quorum • Posted and open to the public • Official business • Electronic meetings?

17. Public notice State statutes generally require that the public receive advance notice of the time, place, and agenda for board meetings.

18. Executive session Some issues may be discussed in executive session personnel matters  collective negotiations or bargaining  purchase or lease of real property  consultation with an attorney about litigation  business pertaining to lawful privilege or confidentiality

19. Public participation • No absolute right to speak at public meetings, unless provided by state law • As long as content neutral, reasonable ground rules can be placed on public comment period • In a designated public forum, no content-based restrictions

20. 7: Guard Against Nepotism and Conflicts of Interest Anti-nepotism policies may prohibit hiring of immediate or other relatives Situations where recusal is appropriate can also arise and should be carefully considered Public officials cannot hold incompatible offices Some states prohibit employment of board members by the board

21. 8: Understand Ethical Considerations for Board of Education Members • Board should consider adopting a code • CABE has several sample codes of ethics for school board members • Boards may also look for guidance from local or state ethics codes for assistance in constructing an ethics code • State statutes and regulations may also prescribe rules for implementation of a code • Check with your state ethics commission (if your state has one) for guidance and/or requirements

22. 9: Clarify the Roles of Board Members and the Superintendent • Superintendent acts as “CEO” of the board and school district. • Has the responsibility of day-to-day operations of the school district. • The board will hire and evaluate the superintendent • The board and superintendent should always have open lines of communication, even in negative circumstances. • The board and superintendent relationship is often a reflection of the school district’s operation as a whole.

23. 10: Plan Your Superintendent Search Process Carefully • Confidentiality is key • Consider a Search Consultant • Rules for hire and appropriate certification are often prescribed through state statutes • Boards may also need to follow FOI rules