“Brush-off culture” led to flawed bond plan

I wrote the following opinion piece that appeared in both the Gazette and the Press-Citizen. I have updated it and added links below.

As a school board member, I had hoped to be able to support the district’s facilities bond proposal. I’ve always voted for school bonds in the past, and I publicly supported the 2013 ballot proposition giving the district the initial funding for its facilities improvements. But I’m voting “No” on the proposal that’s on the September 12 ballot.

Many have discussed the substantive problems with the bond plan, which funds capacity expansions that extend seven years out on the timeline, in many cases without any enrollment projections showing a need for them. A more sensible proposal would bond for a couple of years of projects, then reassess capacity needs based on updated projections.

How did we end up with such an enormous proposal? I believe it’s the result of serious problems with the district’s decision-making culture. In short, the district is resistant to any community input that doesn’t support its preconceived conclusions.

This culture has affected many district decisions. For example, it’s at the root of the district’s troubles with special education. Special ed parents had raised concerns about the district’s practices for years, yet the problems were ignored until outside authorities intervened, ordering the district to stop violating the law. An employee who raised concerns about the district’s seclusion enclosures was terminated for insubordination.

A related example arose last year when the board extended the superintendent’s contract and committed to giving him two large pay increases. When the mother of a student in special ed wanted to object to that decision—in a well-reasoned, thoughtful comment—a board member rebuked her and warned her that she could be held liable for defamation. When three board members explained why they opposed the proposal, the superintendent warned them that district policy banned board members from publicly expressing negative judgments of him (though the policy does not prohibit favorable comments).

Administrative proposals have routinely come with one-sided arguments—all pro, no con—and are sometimes presented at the eleventh hour, giving the board little choice but to approve them. When 2,500 residents submitted a legal ballot petition on the demolition of Hoover School, the board rejected it. The district then spent scarce funds defending that decision, only to lose in court.

This same “brush-off culture” characterized the process that led to the bond proposal. The district held elaborate “listening posts” only to disregard the input it received. Many people had legitimate concerns about the size and content of the proposal, but rather than pursue compromise and consensus, bond proponents doubled down on the existing plan, putting an extraordinary seven years of projects into the bond. Anyone who had doubts was either uninformed or not supportive of “the kids.”

Such a closed environment is inevitably liable to capture by well-funded interests. Now we have an enormous bond proposal, with proponents raising huge amounts of campaign money—twenty or thirty times what a typical school board campaign costs—and with the large majority of it from a small handful of banks, developers, and construction interests.

This is the district on its best behavior, with its hand out for $191 million. If it receives that entire spending authority all at once, there will be little reason for it to change its ways.

Good decisions don’t come out of a culture that is so resistant to differing points of view. The bond proposal is one product of that culture, and it shows. The board should come back with a more reasonable proposal next year, and in the meantime should strive to show progress in repairing the district’s broken decision-making culture.

Board refuses to revisit illegal policy

At tonight’s meeting, I moved to add an item to our next meeting agenda to consider repealing Board Governance Policy 3d(2)(c)—the district policy that prohibits board members from expressing “individual negative judgments” about the superintendent. For reasons I discuss more fully here, this policy is plainly an unconstitutional restriction on speech. Three board members (Chris Lynch, Brian Kirschling, and LaTasha DeLoach) of the six present were against even discussing the issue, so the motion to put it on the agenda failed.

The policy is an embarrassment to the district. It is also yet another legal compliance issue. It also serves to chill speech on legitimate subjects of public debate—the kind of speech that is a necessary ingredient of good decision-making. What is the objection to discussing its repeal?

School board members and free speech (part two)

In part one, I wrote about how the First Amendment protects the right of school board members to explain their votes, even on the issue of the superintendent’s contract. I also wrote about how there are no Iowa statutes that even attempt to prohibit them from doing so.

Our own school district, though, has the following section in its Board Governance policy:

Members shall not publicly make or express individual negative judgments about Superintendent or staff performance. Any such judgments of Superintendent performance will be made only by the Board, meeting in executive session as appropriate.

I should start by saying that nothing any board member said at Tuesday’s meeting violated this policy. But that doesn’t matter. This is a plainly illegal policy, and the school district should be embarrassed by it.

This policy prohibits public speech on a matter of public interest and concern, which is the kind of speech that the Supreme Court has repeatedly described as being “at the heart of the First Amendment.” Even worse, it discriminates based on the viewpoint of the speaker: Negative speech about the superintendent’s performance is banned, while positive speech is allowed. In First Amendment analysis, viewpoint-based prohibitions on political speech are pretty much as bad as it gets. Policies don’t get much more unconstitutional than this one.

It should go without saying why such a policy is so constitutionally offensive. If the government can prevent the public from hearing viewpoints on one side of an issue while allowing them to hear viewpoints on the other side, members of the public will be deprived of information they need to make informed decisions about policies and about candidates. Such a policy would enable government officials to manipulate public opinion in a way designed to entrench themselves in power.

Moreover, such a policy would make it impossible for board members to do their jobs properly. Any time board members raise a concern about what our district is doing, they can be interpreted as implicitly criticizing the district’s administration or staff. If speech like that were prohibited, discussions at board meetings would become one-sided advertisements for the administration’s point of view. One-sided discussions lead to groupthink, not good decisions. Free and open discussion of issues—including the airing of critical views—is a crucial ingredient of good policymaking.

This is not to say that board members should cavalierly comment on the superintendent’s performance without first thinking through the potential benefits and harms of doing so. But regardless of whether that kind of speech is wise or unwise, the government can’t legally ban it. Our school district—which is responsible for teaching our kids how to become “responsible, independent, lifelong learners capable of making informed decisions in a democratic society”—should know better.

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.