Legalities

March 2, 2020 - Volume 40 Issue 8

Legalities

By Howard E. Seufer Jr., Esq.

Q: How can I verify if information my superintendent gives us is accurate?  Can I try to get my own information to verify the information provided?

A: In our experience, board members, with good reason, do not often doubt the accuracy of information the superintendent supplies. The information might seem incomplete or off-target. It might not be easily understood. There may be differences of opinion on what conclusions to draw from the information. But its veracity is not often challenged.

When a board member genuinely doubts information or data from the superintendent, some suggestions and points may be of assistance in resolving the issue.

  • It is never inappropriate for a board member, in good faith, to query the superintendent about the basis of information, ask for clarification, suggest further development of facts, or share any different understanding of the facts and seek an explanation. Superintendents might appreciate the opportunity to set things straight.
  • Frequently a board member with such concerns will address them directly to the superintendent outside of a board meeting. For various reasons, this is often a wise course. As long as a quorum of the board’s members, physically or by other means, are not involved in the clarifying discussion, there is nothing wrong with handling the concern in this fashion. For this to work, both the board member and superintendent must be willing to engage, as is usually the case.
  • Where a board member is concerned about the accuracy of information about an item on the posted agenda for a meeting, a board member may, at that meeting, address the superintendent to resolve the doubt. Where the topic is one for which the board has lawfully decided to enter executive session, the exchange can occur in the closed session. If the superintendent’s reply to the board member is insufficient, the board, by duly adopted motion, might require the superintendent to address the uncertainty then or at some future time.
  • If the information in question is not related to an agenda item, a motion can be made to place the topic on the agenda of a future meeting and to instruct the superintendent to make a report at that meeting to address the issue. If the motion passes, then the board member’s doubt can be addressed at the future meeting. If the board’s policies offer other means of getting an item onto the agenda of a meeting, then that avenue might offer an alternative.
  • An individual board member should exercise good judgment in resorting to self-help when doubting the accuracy of information from the superintendent. Certainly, the member may in many instances consult with others, conduct research, and marshal information to resolve the question. But a member must tread carefully in certain areas. As the courts have often stated, an individual board member, acting alone, has no more authority over school district employees and school district business than a person on the street.
  • Thus, an individual board member cannot require the superintendent or any board employee to furnish the member with information that is not available to the general public. A board employee who refuses to do so is not insubordinate.
  • Similarly, a board member, acting alone, has no authority to enter school facilities or examine files and records that members of the public cannot enter or examine.
  • Where the challenged information from the superintendent involves a personnel or student matter that will come before the board in a hearing, an independent investigation by a board member could disqualify the member from participating in the hearing and even jeopardize, as a violation of due process, the hearing outcome.

Editor's Note: Howard Seufer is a partner at the law firm of Bowles Rice, and the leader of the Bowles Rice Education Law Group