School board members and free speech (part one)

After this week’s meeting, some people raised questions about whether board members could speak publicly about their reasons for voting for or against the proposed contract extension and pay raise for the superintendent. Are board members free to discuss such an issue publicly?

The succinct answer is: Yes.

Any discussion of limitations on speech has to start with the First Amendment. People do not waive their First Amendment rights by getting elected to public office. Speech about the decisions of a public institution is at the heart of the First Amendment. Not only do board members have a right to speak about their votes on board agenda items, but members of the public have a right to hear that speech. Voters need to be able to evaluate us, and their ability to do so would be impaired if we could not explain our reasons for voting as we do.

The First Amendment prevails over any statutes that are inconsistent with it. But there are no statutes in Iowa that prohibit board members from explaining their votes, even about the superintendent’s contract.

Nothing in the Open Meetings Act, for example, prohibits board members from discussing the superintendent’s contract in public. In fact, the Act specifically exempts discussion of the employment conditions of non-unionized employees (such as the superintendent) from its coverage, which means that the Act has no effect whatsoever on the discussion of that issue.

The Act distinguishes those discussions from the board’s formal evaluation of the superintendent’s performance. However, even the evaluation process is not required to take place in closed session. The Act permits, but does not require, the board to go into closed session for its evaluation of the superintendent:

A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons: . . .

i. To evaluate the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered when necessary to prevent needless and irreparable injury to that individual’s reputation and that individual requests a closed session.

(Emphasis added.) The Act further states: “Nothing in this section requires a governmental body to hold a closed session to discuss or act upon any matter.” In sum, the only way a board can violate that section is to go into closed session when it’s not allowed to.

The Open Meetings Act does not even purport to limit the speech of individual board members; instead, it limits the right of the public to hear that speech in certain circumstances. It is designed to allow the board to choose to go into closed session to discuss an employee’s job performance candidly without having to worry about whether the discussion will needlessly injure the employee’s reputation, and to protect itself against possible claims for defamation. (This is why our board invariably does choose to do the superintendent evaluation in closed session when the superintendent so requests, a practice I support.)

Moreover, nothing any board member said during our discussion on Tuesday qualified as a personnel evaluation of the superintendent. The mere fact that a board member says something that could be interpreted as reflecting (positively or negatively) on the superintendent’s performance does not convert that speech into the kind of personnel evaluation covered by the Act. If so, the board could go into closed session for almost every discussion, since it is virtually impossible to discuss school issues in ways that don’t reflect in some way on the job performance of our administrators.

Finally, any such interpretation of the Open Meetings Act would violate its stated purpose, where the Act actually instructs people how to interpret it:

This chapter seeks to assure, through a requirement of open meetings of governmental bodies, that the basis and rationale of governmental decisions, as well as those decisions themselves, are easily accessible to the people. Ambiguity in the construction or application of this chapter should be resolved in favor of openness.

The only relevant limit on what individual board members can do in public is in the Open Records Act, which provides that certain records “shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information.” Specifically, that Act protects the confidentiality of “Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies,” subject to some exceptions.

Nothing any board member said at Tuesday’s meeting came even close to revealing any “personal information in confidential personnel records” of the superintendent. No board member discussed any information that wasn’t already in the public record. Again, it would be extraordinary (and unconstitutional) to interpret that statute to suggest that board members can never say anything that reflects in any way on the superintendent’s performance.

In sum, it would take a lot of chutzpah to read the Open Meetings Act and the Open Records Act as prohibiting board members from explaining their votes publicly.

What about the district’s own restrictions on what board members are allowed to say? I’ll take that question up in part two.