Editor’s note: Members of the Whitewater Unified School District Board of Education, in advance of their regularly scheduled July monthly board meeting, attended an hour-long workshop presented by the district’s attorney, Brian Waterman, of the Waukesha-based firm Buelow Vetter Buikema Olson and Vliet, LLC (Buelow Vetter). Information shared during the workshop came in three parts: open meeting law, public record law, and school board operations. Following is the third of a three-part story about information shared during the workshop.

By Kim McDarison

Members of the Whitewater Unified School District Board of Education recently attended a workshop offering information about Wisconsin’s open meeting and public records laws. The workshop was held earlier this month at the Whitewater High School in advance of the board’s regularly scheduled July meeting.

The workshop was conducted by the district’s attorney, Brian Waterman, of the Waukesha-based firm Buelow Vetter, and offered three topics of discussion: open meeting law, public record law, and school board operations. 

Board of Education President Larry Kachel, in advance of the workshop, told WhitewaterWise’s sister publication, Fort Atkinson Online, that the workshop was scheduled to help new board members better understand the laws.

As earlier reported by WhitewaterWise, the first part of the workshop, focusing on open meeting law, is here: https://whitewaterwise.com/wusd-board-of-education-members-attend-open-meeting-public-records-laws-workshop/.

A second part of the workshop, focusing on public records law, is here: https://whitewaterwise.com/wusd-board-of-eduction-members-attend-workshop-review-open-records-law/.

School board operations

Aided by a 24-page handout, Waterman outlined for board members best practices regarding school board operations.

Within his comments, Waterman first sought to define “school board authority.”

Reading from the handout, school board members were advised that “a school board of a common or union high school district may do all things reasonable to promote the cause of eduction, including establishing, providing and improving school district programs, functions and activities for the benefit of pupils …”

Citing state statutes, Waterman said that duties and powers of school boards are broadly construed to authorize “any school board action that is within the comprehensive meaning of the terms of duties and powers,” as long as the action is not prohibited by state or federal laws.

Turning his attention towards the duties of the school board president, Waterman said the position acts as a chairperson of school board meetings, and makes sure that minutes of meetings are properly recorded, approved and signed. In the absence of a president, a vice president would be able to act as chairperson.

Citing duties of board members in terms of communication, Waterman said that the board acts collectively and pursuant to action taken in properly noticed meetings.

Complaints should be directed to the “proper channels” to “ensure policies and procedures are followed, and to ensure due process and appeal rights are preserved,” the handout stated.

Regarding complaints and quasi-judicial proceedings, Waterman touched on such topics as “board role as final decision maker,” and “Avoiding claims of board member bias,” under which the additional topics of “limiting information to board,” “conflicts of interest,” and “recusal,” fell.

The handout further outlined: “employee complaints,” “public complaints,” and “expulsions.”

Bringing the three workshop discussion topics — open meeting laws, public records laws and school board operations — together, Waterman said: “You can (test) see how the whole board governance, open meetings issues, they all come to say, ‘hey, we’ve got to be transparent here, and we’ve got to act in a way that reflects the will of the board rather than the individual.’”

He continued: “When we talked before about what do you do when you get constituents who are talking to you or asking questions about certain things, really, especially when it talks about complaints, really directing them to the people who can help them. You know some board members … there’s a natural desire that you want to help people. The best way you can help them is by channeling them to the resources to somebody who can do something about it. And that’s often times the administration — it might be someone else — but typically, again, the individual board member doesn’t have the power to solve their problem usually, so providing them with the right resources and directing them, and having a conversation with the administration, as to what that person’s issue is, and helping to kind of facilitate that conversation, I think, is a great role for a board member.”

Looking more closely at best practices when handling complaints, Waterman said: “It’s so important … to recognize is that in a number of cases, and I’ve got a number of them listed here, employee complaints, public complaints, expulsions, we have statutes and we have policies that all address process for these things. And the board is often … the last part of the process. And it’s so important for that reason that, because the board is a final decision maker,” that, he said, no school board member “should inserts themselves into the details,” because, he added, “if you know too much, or you insert yourself into the details, you’re subject to claims that you are bias or there’s been prejudgement or, if, depending on how the board votes, that it can even call into question the validity of the board’s vote, and those are all things we want to avoid in order to protect the integrity of those processes.”

As a matter of board member speech, Waterman sought to make distinctions between promotional and informational speech.

Using referendums as an example, he said: “The district can use funds to provide information to the electorate about what the referendum is, what it would do, … all the facts and information that voters need in order to make an informed decision, but you can’t cross that line into promotion,” which, in a referendum, he noted, board members “have a fine line to walk because, in theory, you wouldn’t be raising the referendum if you weren’t promoting it. But that’s a whole kind of philosophical issue. But the point is promotion is different from information-sharing and we should be cognizant of that.” 

Offering guidance regarding board member speech, Waterman said that board members do not lose their rights to free speech, but they cannot speak on behalf of the board without proper authority, and must abide by district policies and the law.

Further, he said, board members must maintain confidentiality of closed session discussions and other private information learned in the course of their official duties.

Aided by his handout, Waterman defined several aspect of speech, including “pure speech,” which, he said, occurs during board meetings when a board member expresses an opinion.

“This kind of speech  receives the greatest protection under the First Amendment,” the handout read.

A board can regulate pure speech only if three requirements are met: “the speech represents a clear and present danger to society,” “the danger presented outweighs the individual’s interest in pure speech,” and “the restriction is narrowly tailored to a compelling government interest.”

Next, Waterman defined “speech plus.”

He defined the term as “another kind of speech occurring at board meetings in which a board member’s speech is combined with some kind of action, which, he noted, is “usually in a negative sense.” As an example he offered: “refusing to stop discussing a matter after a motion to close a debate has passed.”

Speech-plus is subject to regulation because it interferes with the board’s interest in conducting efficient and orderly meetings, Waterman said.

He outlined several ways in which a board might regulate speech-plus.

Such options included: the board’s adoption of rules and procedures so long as the rules are not so broad as to limit members from engaging in the free exchange of ideas; the board’s regulation of conduct that interferes with orderly meetings, so long as the regulations are clearly defined; the employment of Robert’s Rules of Order. Additionally, he said, the board can limit discussions of certain issues to properly noticed closed sessions.

Waterman offered five purposes for which a board follows rules and procedures for deliberation and debate.

They are: to place all board members on an equal footing; to maintain that the ultimate authority is with the majority; to provide for the “working through” of issues to reach a “considered judgement”; to allow for constructive and democratic meetings, and to avoid “undue strictness,” which, he said, should not intimidate members or stifle participation.

Addressing procedures guiding a board member’s ability to communicate outside of meetings about district matters, Waterman advised that board members may engage in such discussions as long as the matters they are discussing are “outside the scope of properly noticed board meetings.”

“Board members may not represent that they are speaking on behalf of the board, unless they are specifically authorized to do so; board members must speak only in their individual capacities,” the handout stated.

On matters of confidentiality, Waterman said that board policies often restrict board members from violating the confidentiality of closed session meetings, unless disclosure is required by law.

Waterman next addressed differences in actions taken by board members in their public capacity as opposed to those they might take as private citizens.

According to the handout, “Board members cannot advocate or promote candidates while acting in their official capacity.”

Additionally, the handout stated, “school board members are clearly prohibited from using public funds for certain types of election activities.

They may not appropriate the use of funds to endorse, support, advocate or promote candidates in partisan elections, including their own elections or recall elections, it stated.

As private citizens, the handout noted, school board members may assert their personal views and positions on referendums and candidate elections. However, the handout cautioned, board members are advised to “be aware that the state campaign financing law … may apply when contributions and expenditures are made for advocacy of a position on election of candidates to public office or on a school district referendum issue.”

The workshop touched on the difference between promotional and informational government activity.

Citing statute and precedent, the handout noted the difference between the two as involving pertinent facts as opposed to expressed advocacy.

“Public funds expended in connection with board initiatives are best used to inform, not persuade, the citizenry, and to explain the initiative in an unbiased, balanced, and nonpartisan manner,” the handout concluded.

Under a heading of “conflicts of interest,” Waterman addressed two topics: “actual and perceived” and “impact of role in election process.”

Information next shared explored a board member’s liability, and “who can be sued.” 

Waterman told the board that, in general, governmental entities, their officers, officials, agents or employees may be sued in their personal and professional capacities for tort claims — which the handout defined as personal injury, negligence, and intentional infliction of emotional distress — “flowing from the performance or lack of performance of their duties.”

Governmental immunity precludes claims against governmental entities, their officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions, with some exceptions.

They are: “the performance of ministerial duties imposed by law,” “known and compelled dangers that give rise to ministerial duties,” “discretionary medical decisions,” and “malicious, willful and intentional acts.”

Waterman talked about penalties that could be levied against board members who knowingly attend a meeting held in violation of open meeting laws, or who, in an official capacity, otherwise violated the laws “by some act or omission.” Those violators could be asked to forfeit without reimbursement not less than $25 nor more than $300 for each violation.

For those who violate public records laws, he said, criminal charges could be brought. Penalties could be levied for such behaviors as destruction, damage, removal or concealment of public records with intent to injure or defraud.

The law stipulates that a criminal conflict of interest, defined as a Class I felony, could be alleged would a board member perform their duties in a manner that violates criminal conflict of interest laws “by having a private interest in a contract with the district in an amount that exceeds $15,000 annually.”

The handout further enumerated the elements of a defamation suit.

Such elements include: that the statement in question is false; the statement is communicated by speech, conduct, or in writing to a person other than the person defamed, and that the communication tends to harm one’s reputation.

“If the defamed person is a public figure, then they must also show actual malice that the statement was made with reckless disregard of whether it was false or not. Public figures could potentially include teachers, coaches and administrators,” the handout read.

Under a specific heading of “best practices for school boards,” the handout suggested boards implement and consistently adhere to policies regarding roles and responsibilities of the school board and individual board members; follow Roberts Rules of Order and any similar district policies and open meeting laws, regarding meeting procedures, and consider appropriate channels of information flow, both internally and externally, regarding district matters.

Ethics

Also included within the handout was a section on school board member ethics.

As outlined in the handout, and according to state statute, “the Wisconsin ethics code prohibits a local public official from taking ‘any official action substantially affecting a matter in which the official, a member of his or her immediate family, or organization with which the official is associated has a substantial financial interest.’”

In addition, the handout noted, the code also prohibits a local public official from using his or her office or position to assist or promote a substantial benefit, directly or indirectly, for the official, one or more members of the official’s immediate family, or an organization with which the official is associated.

According to the handout, a public official or employee is guilty of a Class I felony if they, in their private capacity, negotiate or bid for or enter into a contract in which the officer or employee has a private pecuniary, meaning related to or consisting of money, interest, direct or indirect, if, at the same time, the officer or employee is authorized or required by law to participate in the officer’s or employee’s capacity as such officer or employee in the making of that contract or to perform in regard to that contract some official function requiring the exercise of discretion on the officer’s or employee’s part.

The aforementioned law does not apply to any contracts in which any single public officer or employee is privately interested that do not involve receipts and disbursements by the state or its political subdivision aggregating more than $15,000 in any year.

Questions from board members

During the workshop, board members were offered opportunities to ask questions.

Several board members asked questions relating to speech and defamation. 

A board member asked: “A board member, I’m assuming they are considered public figures, so somebody making statements about a board member, we would have to apply (those statements) … to a tougher standard.

Waterman said: “That is correct.” 

A board member asked: “And would you also consider most administrators, principals, teachers also public figures …”

Waterman responded: “Yes, certainly the administrators I would say would be, would follow under that higher standard. Teachers, I’d say, I don’t know if it would reach that standard; certainly I believe the court would say, as a public employee, you are subject to higher scrutiny and a higher standard than the average member of the public.”

Another board member asked: “So I know that defamation, what happens if it’s flipped: what if you have a district employee who is defaming a board member? What happens then? Are there any rights for board members?”

Said Waterman: “I’d point to what (an earlier board member said) which is you’ve got a pretty high threshold, you know, board members are — the idea — you certainly could in your private capacity take action and go after an employee, but I think that that might be short sighted in that — I think about the impact that that would have on the organization — and I think it is probably best handled through the administrative chain of command, and by the board if that person has somehow violated policy. I would suggest that it be — and, again, it depends on the circumstances — if this is an employee who is exercising their free speech rights, but there’s a claim that it’s defamatory, it’s outside of their course of employment, it’s a matter of public concern, where the school district wouldn’t have authority to take action against them, that’s a different story.

“But if it is something that’s within the course of their employment and a matter of private concern that the school board does have authority on, I always think it’s best for that — just like any other misconduct or policy violations — to handle it that way.

“So, outside of that, there’s always the opportunity — school board members don’t lose the opportunity to file private actions against other citizens, but I can see all sorts of problems that would come from that from a logistical standpoint, from a PR (public relations) perspective, that would be distracting to the school board and the school district.” 

A board member asked: “Sometimes Wisconsin Statute 120.12, sub. 2, sometimes I think kind of bumps, it doesn’t totally come in conflict, it just kind of doesn’t quite mesh with board policy 161 … how do we deal with that?”

Said Waterman: “The statutes, you know, in 120.12, 120.13, that talks about powers and duties of the school board. And ultimately, the buck stops with you. You are the governing body, and you have responsibility for those things and authority for those things listed in those two statutory provisions. And there’s long lists of all kinds of things that you have to do and long lists of … all kinds of things you can do. And that is ultimately up to you.

“When we talk about the role of board members, it varies depending on the type of district, honestly. Some  boards are — I especially see this in smaller districts — are more involved, because their administration might not be as sophisticated or have the manpower, and in larger districts, you tend to see a more sophisticated kind of hierarchy of operations. And, in my experience, the best functioning districts are those where the board and the administration kind of have, understand those rules, where ultimately you as the governing body is the — has oversight and policy oversight, and oversight over the management of the superintendent, and trust and enable the superintendent then to administer on a day-to-day basis.  And we talk about case-by-case analysis. As we’ve talked about in the past, there are some circumstances in which things are accelerated to the board, because of the circumstances; there are some things, often where the administrative — there’s a process involved by policy. Some of that has to do with the community you are operating in, some of it has to do with best practice. I’d say different boards, and different administration, different communities find their balance in a different place, but the policies are ultimately yours. They reflect what you think is best for how to run an operation.

“I look at it — there’s lots of differences between the public sector and the private sector. but I do look at it like if you have a private company and you have a board of directors, that board of directors hires staff, top level executives, who they trust to ensure that the operations of that company are going to be fulfilled in a way they like. If they see that not happening, then they deal with those executives. But, other than that, they allow them, with the guidance, overall guidance and policy, they allow them to go ahead and fulfill those day-to-day operations.

“So I think a school board is very similar in that the most well run school boards find their stride, find that balance that they’re comfortable with, and that seems to work, but again, every community is different.”

A board member noted: “I’m probably sure there are citizens out there that probably think a few choice words about board members …”

Waterman stated: “I’d say when it comes to members of the public, it is what it is. I mean there’s really little you can do. I have sat with boards who have said, ‘well, you know, should we take action?’ And my advice is always, look, if you want to correct misstatements, that’s one thing, but usually using taxpayer dollars to go on the offensive to bring a claim for a private citizen’s speech doesn’t go over well.

“That never sets well, no matter how outrageous the speech is, I think that most of the electorate says: ‘I don’t want you using my tax dollars that way. You should have a thicker skin as a public, elected official.’”

Said a board member: “I’ve been recommended as a board member to connect with other board members. What are some topics that probably shouldn’t be discussed between board members? It’s just a way to build trust among board members, and knowing where the vision is.”

Waterman answered: “I think talking process, talking, having conversations that build trust and form relationships, that’s good. What I would say that the test is: is this something that would otherwise be discussed in a properly noticed meeting? And if it is something that’s going to be discussed in a properly noticed meeting, you need to make sure that you are not having conversations where you have a potential for a walking quorum. So, is it a violation if you talk about a matter with one other board member about how you feel about a certain topic? No, but you don’t know who else that board member’s talking to … you’ve got to be careful that you don’t start going person-to-person and talking about those issues, because you may end up with a walking quorum and a violation of the open meetings law.

“So, if you are going to talk substance, I would say just be careful that it’s limited. If you are going to talk with more than one person that’s probably not a good idea, because you run the risk of a walking quorum. And you should think about: is this something that should be discussed out in (the) open, in the spirit of transparency, for the public to see?

“But certainly things like philosophy on government and things like that, I think those are good conversations to have … things that the board’s not going to take up.”