Legalities

February 15, 2018 - Volume 38 Issue 6

Legalities

Roger Hanshaw

By Cannon B. Hill, Esq.

Question: One of our colleagues on the school board made an outrageous public statement concerning an education issue in our county. The statement, which was covered by the media, belittled members of the school community, was not based in fact, and was spoken in an angry tirade. To disassociate ourselves from that reprehensible behavior, can the rest of us, at a meeting, pass a motion to censure this member?

On occasion, members of a legislature or other public body have “censured,” or have been urged to “censure,” another government official, often one of its own members.

Generally, this consists of a vote to publicly condemn the official’s actions or statements that violated what the public body considers acceptable standards of behavior. Censure, which can be considered a form of punishment, or public reprimand, does not remove the targeted member from office. The behavior prompting a censure typically is not so severe as to justify removal from office by a three-judge court (which is the process for removing a board member under West Virginia’s laws).

West Virginia’s school laws do not address the issue of censure, and they do not empower a school board to limit the ability of a sitting member to exercise the authority of his or her office.

This is not to say that, as a matter of self-governance, a school board may not consider and approve a motion to censure an individual member. There appears to be no legal authority in our state approving or disapproving of such action. However, even if censure would be upheld in our courts, censuring a member could not keep him or her from attending meetings and voting.

It is conceivable that passing a motion to censure a board member would trigger a lawsuit by the censured member to recover damages from those who voted for the censure. The lawsuit might allege defamation of character or a violation of the censured member’s constitutional right to due process. For that reason, Board members would be well advised to consider the possible individual, personal repercussions which might follow a vote to censure a fellow member of the board.

Alternatively, a school board could take a less formal approach than censuring a board member by including on a meeting agenda an item that would allow members to express their individual distastes for a member’s conduct. However, even with this less formal approach, the concerns outlined above may still exist.

In most cases, the better practice may be to focus efforts on obtaining desired changes in an individual member’s inappropriate conduct through positive interaction and dialogue. 

Situations may arise in which a board member engages in conduct that is actually unlawful and, under the circumstances, might seem attributable to the entire board. In such cases, it may be appropriate for a board to formally disassociate itself from the action of the individual board member. Such action on the part of a school board may limit its liability and preserve the integrity of the board to continue to function in the area tainted by the actions of the individual member. In such situations, a school board should seek legal counsel. 

Editor’s NoteHill is an attorney in the Charleston office of Bowles Rice LLP. A recent addition to the firm’s Education Law Group, she advises, represents, and conducts trainings for school districts, RESAs, and multi-county career and technical education centers. Prior to joining Bowles Rice, Hill for more than a decade practiced law, including school law, in Georgia.