![Page 1: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/1.jpg)
Ten Practices to Avoid LiabilityTen Practices to Avoid Liability
PRESENTED BY:PRESENTED BY:
Robert RaderRobert Rader, , Executive DirectorExecutive Director
Patrice McCarthyPatrice McCarthy, , Deputy Director and General CounselDeputy Director and General Counsel
Kelly Moyher, Kelly Moyher, Senior Staff AttorneySenior Staff Attorney
Connecticut Association of Connecticut Association of Boards of EducationBoards of Education
![Page 2: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/2.jpg)
The presenters gratefully The presenters gratefully acknowledge the work of the NSBA acknowledge the work of the NSBA
Council of School Attorneys Council of School Attorneys
““A School Law Primer”A School Law Primer” on which this on which this presentation is based.presentation is based.
![Page 3: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/3.jpg)
11: : Know the Boundaries of Know the Boundaries of Your AuthorityYour Authority
Authority of boards derived from state
constitution
statutes
administrative provisions
![Page 4: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/4.jpg)
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
![Page 5: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/5.jpg)
2: 2: Focus on the Board’s Focus on the Board’s Policy Making RolePolicy 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
![Page 6: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/6.jpg)
Board policyBoard 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
![Page 7: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/7.jpg)
3: 3: Adhere to Student Adhere to Student Discipline PoliciesDiscipline 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 ruleand educational purpose
![Page 8: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/8.jpg)
Student discipline - decisionsStudent discipline - decisions
• Board becomes involved when necessary to expel a student
• Board acts as impartial decision-maker
![Page 9: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/9.jpg)
• Board or superintendent has authority
to suspend or terminate staff
• Usually terminated for
budgetary reasons
misconduct
incompetence, or now ineffectiveness
4: 4: Understand the Staff Understand the Staff Discipline ProcessDiscipline Process
![Page 10: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/10.jpg)
•Requires due process•Amount of process depends on
potential disciplinary sanction employment status or
classification of employee applicable law, regulations,
policies or employment contract
Suspension without pay Suspension without pay or terminationor termination
![Page 11: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/11.jpg)
5: 5: Review and Adhere to Policies Review and Adhere to Policies on Holiday Celebrationson 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 religious
differences• Make sure staff, students and the community are familiar
with school policies
![Page 12: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/12.jpg)
• Board must act as a body• Individual members not empowered to make policies or perform official acts
6: Be Familiar with the Laws 6: Be Familiar with the Laws Governing Board MeetingsGoverning Board Meetings
![Page 13: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/13.jpg)
What constitutes a meeting?What constitutes a meeting?
• Quorum• Posted and open to the public • Official business
• Electronic meetings?
![Page 14: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/14.jpg)
Public noticePublic notice
State statutes generally require that the public receive advance notice of the time, place, and agenda for board meetings.
![Page 15: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/15.jpg)
Executive sessionExecutive 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
![Page 16: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/16.jpg)
Public participationPublic 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
![Page 17: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/17.jpg)
7: 7: Guard Against Nepotism and Guard Against Nepotism and Conflicts of InterestConflicts of Interest
• Anti-nepotism policies may prohibit hiring of immediate family 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
![Page 18: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/18.jpg)
• Board should consider adopting a code• CABE has several sample codes of ethics for school CABE has several sample codes of ethics for school
board membersboard 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 Check with your state ethics commission (if your state has one) for guidance and/or requirementshas one) for guidance and/or requirements
8: 8: Understand Ethical Understand Ethical Considerations for Board of Considerations for Board of
Education MembersEducation Members
![Page 19: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/19.jpg)
9: 9: Clarify the Roles of Board Clarify the Roles of Board Members and the SuperintendentMembers 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.
![Page 20: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/20.jpg)
10: 10: Plan Your Superintendent Plan Your Superintendent Search Process CarefullySearch 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
![Page 21: Ten Practices to Avoid Liability PRESENTED BY: Robert Rader, Executive Director Patrice McCarthy, Deputy Director and General Counsel Kelly Moyher, Senior](https://reader030.vdocuments.mx/reader030/viewer/2022032702/56649ce45503460f949b0370/html5/thumbnails/21.jpg)
The board’s role concerning violence in The board’s role concerning violence in school and school securityschool 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• Ensure policies and plans are well publicized to parents, visitors and
public• Align emergency management plan with all hazards approach and
collaborate with emergency personnel community partners• Develop Memorandum of Understanding (MOU) with school
resource officers• Staff training to engage and work with students and families affected
by mental illness