Board Refuses to Enact Accountability Measures

The following post is taken from a report originally published at the website of one of the recently-elected board members.

Accountability: The Forbidden Topic

This July, a patron submitted a policy proposal to the Ozark Superintendent for review and distribution to the board according to the guidelines found in Board Policy BF.  It would have established accountability and protection for the district and its employees.  What follows is the story of how the Board refused to even allow discussion on that.

After repeated requests, the proposed policy was forwarded to Board members for them to read in September, more than 6 weeks after its receipt.  In early November, recommendations about the policy proposal were sent to board members, and the proposed policy was placed on the meeting agenda for “first read” as information only and discussion was not allowed (see the 1:28:00 mark on the School District YouTube recording of the meeting to hear about the guarantee of future discussion.)

Here is the proposed policy followed by the accompanying recommendations sent by the administration to the Board in November [I’m including some tweaks [in bold backets] which I had planned to suggest]:

Teacher and staff discipline – Any administrator, teacher, or staff of the district who is disciplined has the right to fair treatment [and due process.] Therefore, any Performance Improvement Plan presented to a [non-probationary, i.e., tenured] district employee [which receives a written response in rebuttal or an appeal for review at a higher level] must be presented to the board at the next [closed] meeting by the superintendent. The superintendent will establish a timeline for the improvement required[, listing measurable sequential objectives,] and [will] update the board monthly on the employee’s progress or lack thereof. Further, no Notice of Deficiency will be presented to a district employee until that employee has been invited to a [closed session] board meeting to be heard and the board has approved the notice. At the hearing, the superintendent must present the failures of the Performance Improvement Plan in correcting the employee’s shortcomings, including a summary of [follow-up meetings with the employee to discuss effort] on the PIP.

Recommendation (from staff):   Do not change current policy or adopt this as a new policy.

Additional (from admin):   Currently there are very prescriptive laws that state how an employee is suspended, released from employment or terminated. This community member does not state which policy to change so I am assuming this is adding to our current policy. I have checked with MSBA and our attorney and their statements are below.

School Attorney: The proposed policy is contrary to federal due process rights, Missouri teacher tenure and related law, Board policy, and best personnel practices. The administration is charged with the supervision, evaluation, and remediation of employees. The Board makes decisions regarding the hiring and firing of employees. The Board does not get involved in PIPs, notices of deficiencies, or other remedial measures because that would unfairly prejudice the Board if an employee were entitled to a hearing before the Board prior to dismissal. Therefore, requiring the Board to approve PIPs or hold hearings before a notice of deficiencies could be served is inconsistent with the employee’s due process rights, as well as being contrary to statutory and caselaw that outlines the procedure for termination of a teacher. The law as it exists provides all the protection required for school employees.

MSBA [unknown who at the MSBA wrote this, presumably a staff member or attorney]: While that statement is in BF (policy) for the superintendent to receive the request in writing, it does not mean the board has to adopt the new changes. I would also like to mention that this doesn’t really seem possible anyways [sic] because hiring, firing, promoting, and disciplining of personnel (610.021(3) RSMo.) is held in executive closed sessions. It would not be public, as this request seems to make intentional.

Now I generally like the idea behind the proposal, as it provides a clear pathway for accountability in employee relations in the district, something which has become a widely-known, serious problem over the past few years (and was, in fact, a big part of the reason I am even a part of the school board today!)  I disagree with several of the shared recommendations, so I prepared a statement to open the discussion with the Board during our December meeting when the policies were supposed to be discussed and voted upon.  I had also made a few tweaks (seen above in bold) to the proposal and was eager to discuss them with my fellow board members.

In the following paragraphs, I’ll share my perspective on the policy, some of which I tried to share with the Board at the December meeting.  I got no further than my first challenging question in the dissection of the legal advice given before another board member interrupted me [the school district has not yet posted the video, but another group has posted it already] to make a motion that prevented further discussion. Then six board members voted to stop any further discussion on a policy which would establish true accountability in the district.  It would have provided accountability for the top member of the administration and ensure just and fair dealings for employees who appeal the decisions of the administration.  

But six board members voted that we didn’t even need to discuss the idea and could instead jump right to a vote on the motion to disapprove it.  That is certainly their right. Perhaps they had already discussed it amongst themselves in twos or threes. Perhaps they talked it over with the superintendent.  However, I firmly believe – and the Open Meetings Act, or Sunshine Law, requires — that these policies are supposed to be discussed publicly so the community can hear the proposals, can hear their representatives’ responses to the proposals, and can offer their own input if they desire. Six board members’ responses are now known; here, I will finish sharing my view on it with the community and invite feedback. That night, at the meeting, I began the Board discussion by saying:

I would like to open discussion in favor of this policy as it provides a path to introduce and promote much-needed accountability in this district.

We’ve been told a lot inaccuracies in the various recommendations given us in the document. It would be tedious for me to try to pick apart each one right now, and we are all quite worn out from more than two weeks of marathon meetings with long-range planning, curriculum conversations, and superintendent selection – all vital components of the District — so I propose we decide to table this motion until next month, where we can discuss it more fully in our work session and possibly even invite another attorney to present another perspective on it.  [At this point (about the 1:18:28 mark), a long-time board member brought up the irrelevant point that we’ve had the proposal for over a month for study.  I was not asking to table it for the purpose of more independent study; I had been eager to get to the point of discussing it with other board members and doubted that it would be given the needed time to discuss it in the December meeting. Little did I know how accurate those doubts were!]  If you don’t want to table it, I said to my fellow Board members, then I can go ahead and clarify a few of the statements in the alleged reasons to dismiss this.  Please stop me if you decide you’re willing to table this until next month’s work session.

The first objection was that it was unclear which current policy was being amended. A cursory glance at current policy shows this is clearly a proposed policy amendment to add to Policy GCPE and/or Policy GCPD.  Since the proposal amends the process by which an employee is terminated, it clearly affects Policy GCPE, modifying either section C or D (a detail which could easily be decided during discussion or possibly separately, after adoption.) It also would affect Policy GCPD, regarding suspensions.  Neglecting to note the affected policy in the proposal’s submission does not at all preclude our discussion of the merits of the proposal itself, and the pretense of not being able to discover which policy was being addressed seems to indicate that the proposal was not given much serious consideration.

Next, let us dissect a few statements in the legal advice the district received.  Am I correctly understanding the claims that:
— If a teacher or employee asks to be heard by the board, then it’s “a violation of their federal due process rights”?  Could you help me understand how the board, at an employee’s request, hearing from the employee can somehow violate their due process rights?  (Note that “due process” refers to the very limited process by which someone may be deprived of their rights.)  American jurisprudence dictates an examination of all evidence, including hearing from the accused. To give audience to the employee’s view of a disciplinary action against him or her would in fact be the definition of due process, not a violation of it.  (Someone else noticed the absurdity of this objection.)
— If a teacher or employee asks to be heard by the board, then it’s “a violation of the Missouri tenure law”?  How so?  Which part?  (One will note upon reading the law and the section of state statute immediately following it that a hearing by the board is actually prescribed as part of the process.)
— If a teacher or employee asks to be heard by the board, then “it’s a violation of Board policy”?  Which one?  It is actually a violation of Board policy to refuse the hearing, as described in a few board policies, including, for example, Policy AC or GCPD.
— If a teacher or employee asks to be heard by the board in an appeal to a perceived injustice by administrators, then granting them an audience is “a violation of best personnel practices”?  Is it best practices to deny an employee opportunity to hear the reasons for a poor performance review or to offer a rebuttal?  Is it best practices to deny an employee an opportunity to offer a defense before disciplinary action is taken?
— Does “the law as it exists” truly “provide all the protection required for school employees”?  Actually, the Missouri Teacher Tenure Act provides only procedural protection, not substantive protection.  A teacher can appeal in court a firing only if their district did not follow the prescribed procedure.  A teacher cannot appeal in court on the grounds that the allegations of misconduct were all deliberate fabrications and demonstrably false.  So, in Missouri, tenure protects teachers only if the district behaves honestly.  When the district is willing to fabricate allegations and falsify evidence, there is no protection.  See the explanation by the Missouri National Education Association for more information.

I would like to further examine why it’s false that the Board cannot hear from teachers on appeal, as that premise seems to fly in the face of all common sense, let alone the explicit directives about a hearing in state law (for one example, see RSMo 105.264), the currently existing sections I.B, I.C, and I.E of Policy GCPE, and also under the description of the Grievance Process in Policy AC. Even Mr. Peterson, the MSBA Senior Director of Board Training, agreed that if an employee requests to be heard by the board, then he or she should definitely be granted an audience (see the 1:06:30 to hear an eye-opening discussion from a long-time board member’s perspective about the board not providing accountability to the administration.  Note the trainer’s response about staff members’ very legitimate and deserved right to be heard upon an appeal – he even names it the staff members’ “due process”.)  The Board might not get involved in the everyday, uncontested issuances of Notices of Deficiency (hopefully those Notices are extremely rare!), but when an appeal about the administration’s decision is made by an employee, then the Board must become involved.  Hearing an appeal from a teacher does not constitute micromanaging; instead, it is a required supervisory activity.  Micromanaging would be initiating dictation of what procedures to do and how to do them; responding affirmatively to an appeal for a hearing or an investigation about violations of procedure by the superintendent is exactly the purpose of the board (see Board Policy BBA.) It is the perfect display of oversight and provides perhaps the only avenue for much-needed accountability.

If, as suggested, all hearings should be held in private, then we would need to amend Policy GCPE section II.A, where it echoes state statute that termination hearings are to be public, with both the defendant and the administration allowed legal counsel. This public hearing affords, not strips, the due process allowed for both the teacher and the administration; for now, both are under the microscope. This public hearing is actually a protection for the board and the administration — not a liability.

How is it a protection?  It opens the personnel record of the specific issue at hand. This protects the board from frivolous requests for hearings, as both parties understand the “dirty laundry” is going to a public board meeting. It protects the board and the teacher equally from later claims that private information was unknowingly “leaked” to the public, that closed-door decisions were made, or that due process was not attended to (this hearing is THE DEFINITION of due process). And, the law for a termination hearing, at least, provides a transcript to protect the school in and from any future action (assuming the school acted appropriately.)

Yes, the Board directs “only” the superintendent, and we also provide protection for all the employees under him or her.  Consider a lawsuit against the school district for some supposed offense.  It isn’t the vice-principal or the superintendent who will be named as a defendant in the case — it’s the school board. (The acting administrator may, in fairness to this blanket statement, be named as a co-defendant; but the board will bear ultimate liability and responsibility). The very idea that the school board is merely an extension of the administration, isolated from routine matters of teacher management is an idea formulated and acted upon by agencies other than law.  The idea has no basis in law.  And it is, in fact, contrary to law. The board is ultimately responsible for all of it. That is the law. That is the case history. And that is the entire premise of the American ideal of “representative” governing.  All in all, the idea of this policy is an outstanding move for any school board truly interested in protecting its own interests in “the buck stops here” liability, not just a specific school who unfortunately has a dismal and tainted past of passing that buck and ignoring teacher abuse.

Lastly, I ask what have we to lose by giving ear to a teacher’s or employee’s requested appeal of an upper-level administrative decision?  It perfectly provides the transparency and accountability we all say we’re so favorably disposed to doing.  If it turns out the employee is wrong, then the Board can affirm that the superintendent is on-track, making the right decisions, maintaining good employee relations. If it turns out the employee is correct, then the Board will have a chance to redirect the superintendent’s administration of the district and to protect the integrity and solid commitment to just and fair dealings with employees, improving the culture and climate of the workplace, and increasing employee’s success in their roles. Reviewing administrative decision-making is a win-win situation for the entire district.

If needed, the next item we can discuss is the purpose of this policy proposal, including some background on why it’s so necessary and some of the benefits it will provide for the future.

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