Law and Policy
Equality of Board Members
Duties of the Chair
Rulings of the Chair
The President presides at the pleasure of the Board
Parliamentary Inquiry and Assistance
Point of Order
Robert's Rules of Order Newly Revised (RONR)
Small Board Rules
The Presiding Officer
Proposed Governance Culture Policies (March 16, 2022)
Proposed Bylaws (March 16, 2022)
Board Members' Comments on Proposed Revisions
Director Daily's First Comments
Director Berg's Rebuttal
Director Daily's Second Comments
Director Berg's Rebuttal
Director Berg's Initial Comments
Comments from Directors Wilson, Espy and Pickard
Board Action of March 16, 2022
Proposed GC-5 Policy on Board Committees (Feb 25, 2022)
State Law (RCW 28A.320.040) regarding local school boards states:
Every board of directors shall have power to make such bylaws for their own government, and the government of the common schools under their charge, as they deem expedient, not inconsistent with the provisions of this title, or rules and regulations of the superintendent of public instruction or the state board of education.
Policies adopted by the school board constitute these "bylaws" and can be found in full on the District Website. Two of those policies, CG-4 and GC-12, establish the current edition of Robert's Rules of Order Newly Revised (RONR) as its parliamentary authority. RONR supplements but does not overrule Board Policies.
On March 16, 2022, the Board approved a new set of Governance Culture Policies to replace the former Governance Policies (with the exception of GC-5 relating to board committees, which will be addressed later).
The Board has also adopted Coherent Governance(R) as its governance model.
All Board members have equal authority and Board all decisions are made by a majority of the Board. The Board President does not rule over the Board but facilitates its work by presiding at the meetings.
See also GC-4, the new Board policy stating the president's role.
When presiding as the Chair at the meetings, the President has the duty and responsibility to assure that the meetings are conducted in a fair, orderly, and efficient manner, consistent with Robert's Rules of Order Newly Revised (12th ed.) (RONR). (See also Why Robert's Rules.)
One of the most important functions of the Chair is to make sure that everyone knows exactly what the pending question is, and to repeat the motion just prior to any vote. It is that last wording of the motion that is official and goes in the minutes.
The Chair may not make unilateral decisions for the Board. Except in emergencies such as fire or riot, the Chair cannot recess or adjourn the meeting without Board consent. The Chair cannot decide to end debate and take a vote if any member still wishes to speak.
For routine, non-controversial matters, the Chair can utilize what is known as "unanimous consent", with a statement such as "if there is no objection, we will take a ten minute recess" or "is there any objection to the adoption of the consent agenda by unanimous consent?" This is, in effect, taking a negative vote first. If there is at least one negative vote, the matter will be debated, if appropriate, and voted upon in a normal matter.
Adopting something by unanimous consent is not the same as a unanimous vote. Some members may not agree but may consider that their objection is a lost cause or is not worth wasting time on.
During the meetings, the Chair may need to make rulings, which are enforceable interpretations of the Board's policies and rules, including RONR. No member has a right to criticize a ruling of the Chair without appealing it. Any single member may appeal a ruling, by simply saying, without the need to be recognized by the Chair, "I appeal from the ruing of the Chair." The matter will be decided by the Board and a majority may overturn a ruling of the chair. Whether or not the appeal is debatable depends upon the parliamentary situation at the time.
If, at any time, the Board is displeased with the conduct of its presiding officer, it may suspend the rules by a two-thirds vote and replace the Chair with another to preside for part or for all of the remainder of that meeting.
The Chair must not use parliamentary procedure as a tool against any member, but as a way to facilitate the meeting and protect the rights of all members. (It may be necessary to restrict one member in order to protect the rights to the other members.)
If a member's request or motion is unclear, the Chair should determine the intent a member and may assist in the wording of the member's motion if it is unclear.
If a member has a question about the most efficient parliamentary procedure, the member may make a "Parliamentary Inquiry" and seek the non-binding advice of the Chair.
If. at any time, the Board's policies and rules (including RONR) are not being followed, any member may, without being recognized, raise a "Point of Order". The Chair will then ask the member to state the point of order and the chair will rule that the point is "well taken" and correct the situation, or rule that it is "not well taken".
A point of order must be raised in a timely manner when the violation occurs. In most cases, it cannot be raised later in the same meeting or at a later meeting.
The Chair's ruling on a Point of Order may be appealed and overturned by a majority vote (a tie sustained the Chair).
All members and guests have the duty to obey the rulings of the chair. If a member disagrees with a ruling, that member must either comply nevertheless or appeal it. (Guests have no appeal rights, but a Board member may appeal a ruling affecting a guest.)
If a member blatantly refuses to obey a proper ruling of the chair, particularly if that ruling is sustained by a majority of the Board, that offending member may be called Out or Order, which amounts to preferring charges against that member for a violation of the rules in the meeting. The remainder of the Board (without the vote of the offending member) then decides guilt and penalty. There is no need for any investigation into the offense since it occurred in the meeting and the remainder of the board are witnesses, judge and jury. The penalty could be expulsion from the meeting if necessary. This could even apply to an elected board member.
The Board President, with the Superintendent and with input from other Board members, prepares the agenda for Board meetings. The agenda is not official until adopted by the Board. (See also Agenda Planning.)
The Board President is the public spokesperson for the Board.
The Board by policy has adopted the current edition of Robert's Rules of Order Newly Revised (known as RONR) as its parliamentary authority. RONR rules apply to Board meetings except when law or Board policy supersede it. The current edition is the 12th edition, published September 2020. The book has been updated every ten years since 1970. (See also Why Robert's Rules.)
For small boards of about a dozen or less, and committees, RONR has some modified rules that allow for less formality than would be needed in a larger meeting. These small board rules apply to the SKSD Board of five. Most rules in RONR can be suspended by a two-thirds vote. See RONR 49:21.
In small boards, the presiding officer participates in debate and can make motions, unlike a larger assembly in which the chair does not make motions or participate in debate.
Motions do not need seconds in small boards, If a motion is on the agenda or stated by the chair, it does not need to be formally made by a member. The chair does not need to ask for motions, but can just state them when needed.
Informal discussion is permitted without a motion being first made, although having a motion on the floor will help to focus the debate. There is no limit to the number of times which a member can speak to a pending motion, although speeches are still limited to ten minutes.
Debate is closed on a pending motion when there is no one wishing to speak, or when a motion is adopted to close debate. A motion to close debate, called "moving the previous question", is undebatable and requires a two-thirds vote for adoption. The maker of the motion must first be recognized by the chair first and cannot just call out "I call for the question".
The Chair cannot decide to end debate if there is still anyone wishing to speak. The Chair can ask if there is any more debate by asking "Are you ready for the question?"
Coherent Governance(R) is a governance model used by the South Kitsap School Board. Rather than have the Board make the management decisions for the Superintendent to carry out, the Board sets the goals (or Results Policies) and establishes Operational Expectations, within which the Superintendent then manages the District. The Board then avoids micro-managing everything in the District.
Five principles of Coherent Governance are:
1. The Board is accountable to the organization's owners.
2. The Board, not individual members, governs the organization. The Board is more than a collection of individuals.
3. The Board deliberately and thoughtfully creates its own culture, in policy, and faithfully monitors its performance against those standards.
4. The Board governs by policy, not by approvals or random directives.
5. The Board makes big decisions before it makes small decisions.
The Board's role is to accept or reject the Superintendent's interpretation of their Results Policies or Operational Expectations, and also the Superintendent's proposed indicators of compliance. The indicators of compliance should reflect actual data to show what is accomplished, not just the process of what was done or attempted.
The Superintendent then reports back to the Board with the data on those indicators of compliance and the Board determines whether or not the Superintendent (and the District) is making progress or in compliance with the initial direction from the Board.
See South Kitsap's Governance Polies on its website. On Friday, June 25, 2021, the Board met with AFI Aspen Group International, LLC and developed revised Operational Expectation Policies. Those draft policies were adopted at the July 21, 2021 Board Meeting, replacing the previous OE 1-15. OE-16, on Equity, was retained and designated as OR-13. The Board had another work/study session with the Aspen Group on Friday, October 8th. and should have adopted those policies developed in November but they were postponed to the November 17th meeting, then deleted from that agenda.
The term Coherent Governance is a registered service mark AGI Aspen Group International LLC.
At the February 16th Board meeting, adoption of the remaining to parts of the Board's governance policies was on the agenda. After about twenty minutes discussion on the documents, it was decided to postpone the matter until the next regular meeting on March 2nd. In the meantime, all Board members were invited to submit specific amendments to the proposed documents for consideration.
State law authorizes local school boards to "make such bylaws for their own government, and the government of the common schools under their charge, as they deem expedient ... [RCW 28A.320.040].
Most districts in the state have what are designated as 1000 series policies for the board operations and 2000 - 6000 series policies for the operation of the district. Under the SK Board's Coherent Governance (R) model, the 1000 series policies instead consist of four sets of policies:
1. Results - the goals of the District
2. Operational Expectations - the delegation of authority to the Superintendent with specific directions on what the Superintendent must do and must not do, and for which the Superintendent is evaluated.
3. Board/Superintendent Relations - Policies that define the duties and relationship between the Board and the Superintendent.
4. Goverance Culture - the policies for the Board's own functioning.
The 2000-6000 series policies for the operation of the schools are under the Superintendent's jurisdiction.
The SK School Board had what are termed Governance Policies that address the workings of the Board. The Aspen Group did not want to include some of these in their recommended Governance Culture policies, and recommended that they be adopted separately as bylaws. These provisions related to director districts, board elections, conduct at meetings, and student representatives meeting with the Board.
This created some conflict and disputations in November when they were up for adoption. Director Berg in October wanted those provisions to be included in the new Governance Culture policies in order to have all related policies in the same place and avoid confusion with statute's term "bylaws", by November conceded and proposed bylaws as a separate document. Director Daily did not want to include those bylaw provisions at all because he felt that they attempted to put illegal restrictions on what Board members could do at meetings. (See his comments below)
Dear fellow SKSD Board Directors,
As we work on putting in our policy comments, I offer my thoughts on the process. As a school board we have a duty to and must abide by our states revised codes, legal statutes, and municipal codes. There are also federal statutes to be considered.
Some current board members may still believe what other boards members of past boards have told them. Clearly our present board policies, procedures, and bylaws do not have the force of law. For us as a board or as individual board members to believe otherwise is at our individual and collective peril. We must not forget that board polices, procedures, and bylaws that are not substantiated by laws can be challenged in court.
As I see it, there are at least five important issues to consider.
Click here for Director Berg's rebuttal to Director Daily's remarks
Comments on GC and Bylaw Policies- J Daily – 2/20/2022
a. GC- 1 - No comments
b. GC- 2 - Item # 3. Nice ideals to strive for but you cannot legislate behavior and most are not legally enforceable. The world has changed and we need to change with it. Words such as “never” allow the board to hide issues from the community. Prior boards are full of questionable conduct that was hidden from the public using this rationale. This is exactly the opposite of the transparency we seem to talk about. Similar comment in the superintendent’s OE. You can’t be transparent if you can never say a negative thing about the district or the board. What it should say is tell the truth. If you don’t like the truth, do some work and take action to fix it; not lie.
- Item # 4. All directors do not participate in the agenda development as is counter to the Aspen Group guidance. Only one director knows the content of the consent agenda prior to sending out to others. It is unfair and biased to say that the items will not be discussed when the other directors do not have any input into the consent agenda. If it is important enough to put on the board agenda, it should be able to be discussed. Otherwise, show the law that pertains to the item requiring approval or delete it.
- Item # 5. Concerns about someone hijacking the consent agenda are overblown and irrational and hints that we are not all equal in what we want to say and address. Anyone should be able to have an item removed and considered separately. The time involved to discuss is minimal and clarifying questions often take up more time. This is a perceived RROO issue to fix a problem that doesn’t exist. Don’t put items in the consent agenda that don’t belong there in the first place.
- Item # 6. Given the new coherent governance model, this needs revision as it is now inaccurate. We do focus on results, procedures, and progress as they are the tenets of the superintendent’s evaluation through the OE’s. The whole purpose of the coherent governance model is to monitor all facets of the district; not to ignore something because it is “operational” and unions/others have a vested interest in the board remaining ignorant of district issues.
- Item # 7. The board should consider the concept of a unanimous decision for important decisions. Again the fear of someone hijacking the board is overblown and without merit. Someone who “holds out” wants a full discussion, all inputs/viewpoints considered, and a data driven decision that is free of political input or individual opinion. Important decisions that affect the entire community and district should be discussed until all directors agree and understand all viewpoints and information. Our court system uses this for important jury trials. A bond issue is an example of something that should require resolution by all directors; not just a majority of three to make the decision for the entire community.
- Item # 8. This needs to be revised to say that RROO are a guideline to use for board meetings, if desired. There are many ways to move the meeting along much quicker than bogging it down with RROO procedures. Most are not needed as we make few formal decisions and the “around the table” method we use to ask each director for their opinion is in conflict with RROO anyway. A RROO discussion is open ended with back and forth, not just each director’s opinion in some order and move on to a vote; unless, of course, the outcome is already predetermined.
c. GC - 3 - Item # 2. Might add employees and community
- Item # 3. How will you do this?
- Item # 4. How will you do this?
d. GC- 4 – Item # 1 C- There is no enforceable authority in RROO. They are not actual rules. RROO is a guideline to use, if desired, to conduct a meeting; not to steer a meeting to a predetermined outcome.
- Item # 7. This is not in concert with the Aspen group and the Coherent Governance model. It also does not agree with Bylaw 3.
e. GC- 5 – Item # 1. “Board committees….. Where does it say what is authorized?
- Item # 3. Committees are to be temporary. No termination date is in this policy for either committee. The Aspen group said to get rid of them as they are really operational in nature. We have no business in these committees. As I stated earlier, a good example of a board committee would be one for levy or bond passage that ends after the election is completed.
- Item # 5A. Assign this committee to the superintendent. They come to the board for final approval of any projects as outlined in OEs
- Item # 5B. Assign this committee to the superintendent. They come to the board for final approval of curriculum.
- Item # 5C. (ADD) There is no mention of the audit committee which needs to remain (and be revised) to support the internal auditor in GC- 3, item # 7.
f. GC- 6- Item # 1. When in August? Teachers normally start training in mid- August.
- Item # 2C. Should this be OEs and all board policies?
g. GC- 7- Items # 5, # 6, # 7 are not legally enforceable and may be violations of individual rights. These are certainly good ideals to strive for and are in the interest of all board members but you cannot legislate behavior. The world has changed and we need to change with it. Repressing/suppressing individual rights is exactly the opposite of the transparency we seem to talk about.
h. GC- 8- No comments
i. GC- 9 – No comments. I would avoid this one. Under litigation.
General comment. The concept of bylaws is a certain board member’s initiative and those views were not shared with/by the other board members. The policies from the previous board are under litigation and therefore cannot be fully discussed. This is an attempt to make those prior polices applicable and to give them some type of authority which they do not have; either ethically or legally. The legality of these bylaws and policies will depend on the upcoming court rulings and the WA State Ethics Board once they have ruled; except as delineated by the applicable RCWs
a. Bylaw 1, page 1. Legal description. May not include McCormick Woods depending on when this was written. Talks about bylaws only that can be changed. What about policies? Why the difference in why bylaws take 2/3s to be changed and policies by majority?
b. Bylaw 1, page 1. Legal status. First paragraph. Does not read the same as GC- 1 and GC- 2 (6).
c. Bylaw 1, page 1. Legal status. Second paragraph. Why can the bylaws be amended differently than the board policies. Should be the same for both.
d. Bylaw 1, page 2. Organization. This reads differently than other documents. Is our mission to do what is in the first sentence or is it something else as mentioned in other documents?
a. Bylaw 2, page 1. Number of Members and Terms of Office- first paragraph. We should consider a 7 person board because the population and area has grown and this would allow us to form usable committees with board members.
b. Bylaw 2, page 1. Number of Members and Terms of Office- second paragraph. Adding the part after the comments regarding the oath of office are not enforceable and probably illegal. The board cannot refuse to seat an elected official as long as they complete the oath of office which does not have any local conditions.
c. Bylaw 2, page 2. Candidate orientation. I do not understand why we have parts that the superintendent is directed to do are included in the bylaws. All of his responsibilities should be in the OEs and not scattered in the bylaws. How do you hold him accountable for working with candidates as some may request little and some may have extensive requests for information?
In general, this deals with the OPMA, RCW 42.30. All of it should be quotes from the RCW; not adapted nor summarized. Many of these should be quoted directly from RCW 42.30 instead of just paraphrased.
a. Bylaw 3. Page 1. Meetings in General, paragraph 3. Do not adapt an RCW. Quote it directly to avoid any misinterpretation.
1). There is no provision for Zoom meetings or meetings that are hybrid. We need to continue Zoom access so that the public may view and also participate in the meetings. There should be no requirement for them to be in person to have public comment in board meetings.
b. Bylaw 3, Page 1. Regular Meetings, paragraph 1. Why are we moving to 5 PM versus 6 PM? Who is the meeting for?
1) Paragraph 3. Delete this paragraph. Confusing and previously said.
c. Bylaw 3, Page 1. Special Meetings. This needs to be quoted out of RCW 42.30. This section has both special meeting and regular meeting procedures.
d. Bylaw 3, Page 2. Executive sessions, closed meetings, work sessions, emergency meetings, public meetings. All of these are in RCW 42.30 and need to be direct quotes. Much of this is also in the GCs
e. Bylaw 3, Page 3. Agenda planning. Items 1 and 2 have already been discussed elsewhere in GCs.
f. Bylaw 3, Page 3. Item # 4. This is an example of putting RROO into a bylaw. The use of RROO is to conduct the meeting, not to mandate the content of the meeting agenda or how it functions.
1) I will not support any item that is non- debatable in the consent agenda. I am supposed to be one of 5 with an equal voice. I have no input to the agenda as I cannot see it being done. So, I have no idea where an item may be put. The idea of someone hijacking the board is in the imagination of one person and a reaction to a perceived problem that is not really an issue. Making two board members needing to agree is wrong to remove it.
2) By the way are we talking about the superintendent’s consent agenda or the boards consent agenda?
g. Bylaw 3, Page 3. Quorum and attendance. Again, most of this should be quoted from RCW 42.30. Also, what is an example of an unexcused absence? Why do we need to approve of someone’s absence?
h. Bylaw 3, Page 4. Meeting Conduct. This is putting RROO into a policy which is incorrect. RROO are not laws, not policy, not enforceable, and cannot be mandated. They are simply a methodology to conduct a meeting, if desired. They should not be in any policy or in any bylaw except as a reference for meeting use, if desired. Meetings do not require RROO in order to be conducted. They might guide the meeting but they are not an excuse to control the meeting. They generally impede meetings and were a source of conflict with the last board. They are not necessary to conduct any type of meeting and are generally unnecessary.
i. Bylaw 3, Page 4. Public comment. This needs to be entirely rewritten. It does not comply with RCW 42.30 and therefore is illegal.
Bylaw 3 (again) really # 4
a. Bylaw 4, Page 1. First paragraph. I recommend we go to one representative if both are going to come from the high school.
1) I recommend that a student serve only one term so that others may have the opportunity to serve.
2) We have no enforceable confidentiality agreements with student representatives which is complicated as they are minors.
3) We have no reference that they should comply with all board policies if we interpret them as “board members”
b. Bylaw 4, Page 1. Item # 2b. Reword to “should” attend all board meeting versus will.
Bylaw 4 (really 5)
a. Bylaw 5, Page 1. Compensation and Reimbursement
1. Are student representatives paid to attend the board meetings? If not, then it is hard to make their attendance mandatory as we are compensated but they are not.
RCW 42.30.030 Meetings declared open and public.
All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency,
RCW 42.30.040 Conditions to attendance not to be required.
A member of the public shall not be required, as a condition to attendance at a meeting of a governing body, to register his or her name and other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his or her attendance.
RCW 42.30.060 Ordinances, rules, resolutions, regulations, etc., adopted at public meetings—Notice—Secret voting prohibited.
(1) No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter. Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void.
See RCW 42.30 for other applicable laws as well as the RCWs which govern the school board, superintendent, and individual board members
Click here for Director Berg's rebuttal to Director Daily's second remarks
John Berg’s recommended amendments for Governance Culture Policies and Bylaws
Bylaws: Renumber Bylaw 3 on Student Representatives to be Bylaw 5. This will avoid having two bylaws both numbered 3.
Bylaws: Number the individual sections within in Bylaws 1 – 3. This will provide for easier reference. Bylaws: Rename all Bylaws to be included as Governance Culture Policies 10-14 respectively. While this is contrary to the recommendation of The Aspen Group, it would provide all the Board’s governing policies in one place and with equal weight. Most school districts in the state do not have “bylaws” as such, but have all their governing documents in one place, typically 1000 series policies.
These constitute the “bylaws” referred to in RCW 28A.320.040, which states:
Every board of directors shall have power to make such bylaws for their own government, and the government of the common schools under their charge, as they deem expedient, not inconsistent with the provisions of this title, or rules and regulations of the superintendent of public instruction or the state board of education.
The bylaws “for their own government” correspond to series 1000 policies, and those “for the government of the common schools under their charge” correspond to the 2000-6000 series policies.
This Board authority is reinforced in RCW 28A.320.015 (1) (c) which grants the school board “Such powers as are necessarily or fairly implied in the powers expressly authorized by law.”
GC-2 Delete Paragraphs 4 and 5. These are covered in more detail in Bylaw 3 – Meetings under Agenda Planning. In order to avoid possible conflict with different wordings, specific provisions should be stated only once in the governing documents.
GC-2 Delete Paragraph 8. This is covered in Bylaw 3 – Meetings under Meeting Conduct. In order to avoid possible conflict with different wordings, specific provisions should be stated only once in the governing documents. Robert’s Rules of Order Newly Revised (RONR) permits workshops and retreats to be conducted more informally, while still retaining the protections afforded in all meetings.
GC-5 Delete GC-5 - Board Committees for a later discussion and revision. There are major changes needed to this policy regarding committee. The Board can function in the meantime without this policy because of its powers under the RCW’s cited above and RONR. The Facilities Long-Range Planning Advisory Committee was created by Board Resolution and would not be impacted by the deletion of this policy at this time. Some on the problems that need to be addresses are:
Directors Wilson, Espy and Pickard did not submit written comments.
At the March 16, 2022 Board meeting, the proposed bylaws were re-designated to be CG 10-14. Paragraphs 4, 5 & 8 of GC-2 were deleted. GC-5 on Board Committees was deleted from consideration and will be addressed separately at a later meeting. The remaining package was adopted as amended on a vote of 4-1, with Director Daily voting no.
On April 15, 2022, Director Daily filed another appeal to the Kitsap County Superior Court, this time from the Board's March 16 decisions.
Washington State Law grants the school board the authority and holds them accountable for the operations of the schools in the district. In the South Kitsap School District, the Board had delegated much of the day-to-day operations of the District to the Superintendent.
There are, however, some areas in which the law and voters hold the school board directors more directly accountable. These are curriculum and finance. Under finance comes the approval of the annual budget, levying of taxes, borrowing through voter-approved bonds, and construction of new schools. The law also requires Board approval for every check written by the District.
To assist the Board in these duties, specific committees are established, either by state law or by Board policy.
The Aspen Group, who provided training to the Board in their Coherent Governance (R) model, was emphatic that Board committees should not interfere with the administration of the District that has been delegated by the Board to the Superintendent. They advised that there should be no permanent Board committees and that any committee established would be temporary.
Washington State Law, however, specifically RCW Title 28A, which deals with public schools requires the Board to have at least two committees, an Auditing Committee and an Instructional Materials Committee. In 2020, the Board also established a Facility Long-Range Planning Advisory Committee. There was some extensive Board debate in October and November 2021 regarding the proper role of these committees.
The draft Governance Culture Policy GC-5 on committees, presented by the Aspen Group in January 2022, was incomplete and was on the Board agenda for consideration on March 2, 2022. Director Berg planned to propose striking that GC-5 from the others before adoption in order to address the issue of Board committees in more detail later.
Director Berg's draft proposed GC-5 can be found below.
Director Berg's extensive comments on the Auditing Committee can be found here.
The section below consists of an open letter to the Board on Director Berg's proposed amendment to the board agenda planning process. The second section follows up on the Board's final action.
The following motion was made by Director Berg at the Board's December 15th regular meeting:
In lieu of a separate agenda planning meeting with limited director participation, each board agenda will provide a 15-20 minute segment near the end during which the Board can plan future agendas.
The motion and six-minute discussion can be found on the video of the meeting, beginning at timepoint 3:10:00. The motion was postponed until the January 5, 2022 meeting. The fuller discussion on agenda planning began earlier at 2:56:10.
The purpose of the proposed revision is three-fold: (1) To provide more efficient agenda planning, (2) To more fairly involve the entire board in the agenda planning, and (3) To provide greater transparency for the public on board actions.
The current official Board policy on agenda planning can be found here. It states, in part:
Guided by the annual board agenda, the Board president and Superintendent, with input from directors and the public, will set the agenda for Board meetings.
Prior to December of 2021, the practice was to have an agenda planning meeting of about thirty minutes on the Thursday or Friday preceding a Wednesday Board meeting. The Board President, Superintendent and one other Board member on a rotating basic would meet to plan the agenda. Only two Board member were involved because the Washington State Open Public Meeting Act (OPMA) prohibits more than two Board members having a discussion on Board business outside of a publicly announced meeting open to the public.
At the December 15, 2021 meeting, during the discussion, Board President Wilson stated his intent was to have only Director Pickard, as the Board Vice President, join himself and the Superintendent in the agenda planning meetings, rather than include other Board members on a rotating basis.
If other Board members wish to have an item on the agenda, they would notify the President prior to the agenda planning meeting. If that was not done, or if the President did not put the requested item on the agenda, it could be added to the agenda at the beginning of the Board meeting with the approval of the Board.
The proposed agenda would then be posted on BoardDocs and become available to the public on the Monday before the Wednesday Board meeting. Typically, additional supporting documents are added to the posted agenda before the meeting, and occasionally new items are added to the posted agenda prior to the meeting.
The OPMA prohibits final action at a special meeting on any item not on the posted agenda, however it does allow final action on any item at a regular meeting without it having been in the posted agenda. Some school boards have a policy of not even discussing anything that was not on the posted agenda, but South Kitsap does not have such a policy.
The Aspen Group International, LLC, is the governance consultant that the Board has been using to improve its governance policies and practices, utilizing Aspen's Coherent Goverance(R) model. Some of that counsel, from Chapter Nine of The Art of Governing Coherently by Linda J. Dawson and Randy Quinn includes:
If the proposed practice is approved:
During the discussion on the postponed motion, Director Berg amended his motion by striking "15-20 minute" before "segment" so that it read as follows:
In lieu of a separate agenda planning meeting with limited director participation, each board agenda will provide a segment near the end during which the Board can plan future agendas.
The amended motion was defeated with only Directors Berg and Daily voting in favor.
On March 16, 2022, the Board adopted revised Governance Culture Policies that address agenda planning. Agenda planning is mentioned in GC-4, President's duties #7, which states, "On behalf of the Board, and in concert with the Superintendent, develop proposed Board meeting agendas consistent with the Board’s annual work plan" and in more detail in GC-10, under the heading "Agenda Planning".
Prior to March of 2022 , the Washington State Open Public Meetings Act, or OPMA (RCW 42.30), did not address public comment at public meetings. The law in effect at that time can be found here.
ESHB 1329, which amended the OPMA, was passed by the Washington State Legislature and signed into law March 24, 2022. ESHB 1329 can be found here. This legislation addressed public comment in connection with public meetings, as well as amendments to the OPMA relating to emergency situations.
When the amendments are eventually put into the RCW Chapter 42.30, it can be found here.
Sections 5 - 11 took effect March 24, 2022, the remainder of the bill takes effect June 9, 2022
Sections 1-4 take effect June 9, 2022. They encourage public agencies to involve the public in their decision-making process, particularly utilizing communication technology, using wording such as:
Therefore, the legislature intends to encourage public agencies to make use of remote access tools as fully as practicable to encourage public engagement and better serve their communities. (Sec 1, p. 2, ll. 18-21)
The people insist on remaining informed and informing the people's public servants of their views so that they may retain control over the instruments they have created. For these reasons, even when not required by law, public agencies are encouraged to incorporate and accept public comment during their decision-making process. (Sec. 2, p. 2, ll. 33-38)
Public agencies are encouraged to provide for the increased ability of the public to observe and participate in the meetings of governing bodies through real-time telephonic, electronic, internet, or other readily available means of remote access that do not require an additional cost to access the meeting. (Sec 3((2), p. 3, ll. 7-11)
This is a new section addressing the holding of public meetings remotely through electronic means, primarily during an emergency. It requires that the public must be able to listen to the proceedings remotely.
It also permits agencies to continue to hold meetings remotely through electronic meetings when there is no emergency.
This section amends RCW 42.30.040 to read (with addition underlined):
A member of the public shall not be required, as a condition to attendance at a meeting of a governing body, to register his or her name and other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his or her attendance. This section does not prohibit any generally applicable conditions determined by the governing body to be reasonably necessary to protect the public health or safety, or to protect against interruption of the meeting, including a meeting at which the physical attendance by some or all members of the public is limited due to a declared emergency. (p. 4, l. 38 - p. 5, l. 8)
(While this prohibits conditions to attendance at a public meeting, it does not prohibit other requirements for participating in public comment.)
This section addresses interruptions to the orderly conduct of meetings in RCW 42.30.050 and adds:
Nothing in this section prohibits the governing body from stopping people from speaking to the governing body when not recognized by the governing body to speak.
These sections address notice requirements and posting notices on shared websites and posting notices physically during an emergency when travel to the building is impaired.
This section amends RCW 42.30.110, regarding executive sessions and adds:
The announced purpose of excluding the public must be entered into the minutes of the meeting required by RCW 42.30.035. (p. 11, ll. 34-36)
These is a new section in RCW 42.30 as follows:
(1) Except in an emergency situation, the governing body of a public agency shall provide an opportunity at or before every regular meeting at which final action is taken for public comment. The public comment required under this section may be taken orally at a public meeting, or by providing an opportunity for written testimony to be submitted before or at the meeting. If the governing body accepts written testimony, this testimony must be distributed to the governing body. The governing body may set a reasonable deadline for the submission of written testimony before the meeting.
(2) Upon the request of any individual who will have difficulty attending a meeting of the governing body of a public agency by reason of disability, limited mobility, or for any other reason that makes physical attendance at a meeting difficult, the governing body shall, when feasible, provide an opportunity for that individual to provide oral comment at the meeting remotely if oral comment from other members of the public will be accepted at the meeting.
(3) Nothing in this section prevents a governing body from allowing public comment on items not on the meeting agenda.
(4) Nothing in this section diminishes the authority of governing bodies to deal with interruptions under RCW 42.30.050, limits the ability of the governing body to put limitations on the time available for public comment or on how public comment is accepted, or requires a governing body to accept public comment that renders orderly conduct of the meeting unfeasible. (p. 12, ll. 1-24)
These two sections specify the name of the act as "Washington state open public meetings act or OPMA" and provides for Sections 5-11 to take effect immediately (p. 12, ll. 25-33.)
The March 2022 changes to the Washington State Open Public Meetings Act (OPMA) are detailed above. Those provisions taking effect March 24, 2022 do not appear to require any immediate action or change in policy or procedure by the Board.
Those provisions taking effect June 9, 2022, particularly Section 13 of the bill, should be addressed by the Board in May.
The prior OPMA did not address or require public comment at public meetings. It addressed attendance but not public comment.
The term "public comment" appeared nowhere in the prior OPMA except when when defining a governing body it mentions a committee acting on behalf of the governing body taking public testimony or public comment (RCW 42.30.020 (2)). It also mentions "receipt of public testimony" as an example of the governing body's action in RCW 42.30.020(3).
ESHB 1329 does address public comment and requires it only in very specific instances. Section 2 (p. 2, ll. 36-38) states "For these reasons, even when not required by law, public agencies are encouraged to incorporate and accept public comment during their decision-making process." In this section, the legislature even acknowledges that public comment is not required by law. If it were required by law, the legislature would not feel the need to "encourage it". Notice that it encourages public comment "during their decision-making process" and does not even specify during the actual meetings of the governing body, which is only part of the decision-making process. Specifics on public comment that are required are detailed later in Section 13 of the bill.
(This weakens the plaintiff's argument in Daily v. SK School Board  which argues that the Board provided insufficient public comment prior to awarding the contract for pool renovations. It is unlikely that the court will make a legal requirement for that which the legislature sought only to encourage. It is also unlikely for the court to apply the requirements of Section 13 to board action that occurred prior to the effective date of the new law.)
Section 3(1) (p. 12, ll. 1-6) states:
Except in an emergency situation, the governing body of a public agency shall provide an opportunity at or before every regular meeting at which final action is taken for public comment. The public comment required under this section may be taken orally at a public meeting, or by providing an opportunity for written testimony to be submitted before or at the meeting."
Notice that the public comment can be before or during the meeting and it can be taken in written form or orally. The law uses the word "or" rather than "and". Under this statute, the Board could permit only written public comment to be submitted before the meeting and the public comment requirements for "during the decision-making process" would be satisfied.
Section 5 (pp. 3-4) repeatedly uses the term "listen" in discussing the public's participation rights in the public meeting. In fact, it even cites "broadcast by the public agency on a locally available cable television station" (p. 4, ll. 3-4) as an example of meeting the requirements to allow the public to listen. A television broadcast does not permit the public to speak at the meeting. The Board's live streaming of the meeting can be in listen-only mode.
The OPMA prohibits any conditions precedent to attending public meetings, such as signing in, filling out a form, or whatever. Thus anyone can attend a meeting and listen anonymously without the need to identify themselves.
Anyone is also free to write to their elected officials anonymously and this is not addressed by the OPMA.
Speaking to the Board in a public meeting is quite different from merely attending and listening. Nearly all pubic agencies in Washington State require those who wish to address the governing body in the public comment portions of their meetings to identify themselves, and many require pre-registration before the meeting. (This policy and practice is currently being challenged in Daily v. SK School Board . See Notice of Appeal, pp. 3-5.)
The Washington State School Directors' Association (WSSDA) has a Model Policy #1400, after which many school districts pattern their own policies. Regarding public attendance and comment at board meetings, that policy states:
The board may require those who wish to speak (but not all attendees) to sign in so that the board has a tally of individuals who wish to speak and can call them forward. When called forward, individuals will identifying themselves and proceed to make comments within the time limits established by the board.
ESHB 1329 Section 13(2) reads:
Upon the request of any individual who will have difficulty attending a meeting of the governing body of a public agency by reason of disability, limited mobility, or for any other reason that makes physical attendance at a meeting difficult, the governing body shall, when feasible, provide an opportunity for that individual to provide oral comment at the meeting remotely if oral comment from other members of the public will be accepted at the meeting. (p. 12, ll. 10-16)
Notice it says, "if oral comment from other members of the public will be accepted at the meeting." This presupposes that oral comment from other members of the public may not even be accepted at the meeting.
It would therefore be quite legal for the Board to accept no public comment during the meetings, either written or oral, and accept only written public comments before the meeting, except for specific public hearings required by law, such as before adopting the annual agenda.
Click here for a discussion of Public Comment at Board meetings prior to the changes in the OPMA.
Director Berg proposes four changes to the Board's Public Comment Policy:
1. A town hall type meeting, similar to that held on January 26, 2022 will be scheduled at least quarterly. This will provide an opportunity for the public to address the Board orally both remotely or in person on a variety of topics.
2. The public will be encouraged to share their public comment with the Board prior to its meetings. This can be by email to the individual Board members or to the entire Board, or through individual conversations with board members, by phone, in person, email, or whatever.
3. During the semi-monthly Board meetings, the Board members will take time to share and discuss public comment that they have received. This will provide the public with the feedback from the Board in response to their public comment that was not provided in the current public comment portions of meetings.
4. Oral public comment will not be accepted during normal semi-monthly meetings because adequate opportunity will have been provided under items 1-3 above. Under Section 13 (2) of ESHB 1329, if any oral public comment is allowed during a board meeting, the Board would be required to accept remote oral comment from anyone who claimed difficulty in attending the meeting physically. "Difficulty" is not defined in the bill and under the OPMA's required liberal interpretation, nearly any difficulty would quality.
The board recognizes the value of public comment on educational issues and the importance of involving members of the public in its meetings. In order to permit fair and orderly expression of such comment, the board will provide a period at the beginning and/or the end of the meeting during which visitors may present to the board. Unless the entire board meeting is conducted electronically, oral public comment will be received only in person.
The board will also allow individuals to express an opinion prior to board action on agenda items that the board determines require or will benefit from public comment. Individuals wishing to be heard by the board will first be recognized by the chair/president.
Individuals, after identifying themselves, will proceed to make comments within the time limits established by the board. An individual will be allowed three minutes and a representative of a group five minutes. Only district stakeholders will generally be allowed to address the board. The chair/president may interrupt or terminate any statement when it exceeds the time limits, or is vulgar, obscene or grossly disruptive to the board process. Any restriction imposed must be viewpoint neutral. The board as a whole has the final decision in determining the appropriateness of all such rulings.
Public comment is an opportunity to direct comments to the board and is not intended to permit interrogation of the board or its members nor to engage in a dialogue. Any specific questions raised in the public comment will be addressed to the chair/president, who will typically refer the question to the superintendent for a detailed response to the individual at a later time. The superintendent will then also report the response to the board at a subsequent public meeting.
The board recognizes the value of public input on educational issues and the importance of involving members of the public in the board’s decision-making processes. Therefore, the board encourages public comment during its decision-making processes. Members of the public are encouraged to communicate with board members outside of board meetings, whether in person, in writing, orally, or electronically.
In order to permit fair and orderly expression of public comment to board, the board will devote the majority of at least one meeting quarterly to allow for oral public comment at a board meeting. After identifying themselves and being recognized by the chair, any individual may address the board in a civil manner for up to three minutes. An individual’s allotted time may not be transferred to another. The president may interrupt or terminate any statement when it exceeds the time limits, or is vulgar, obscene or grossly disruptive to the board process. The board as a whole has the final decision in determining the appropriateness of all such rulings. The board may limit all or a part of the public comment at a meeting to specific topics. Public comment may be received in person, if the meeting is held in person at a fixed location, or orally at an in person meeting or at a remote meeting. Any restriction imposed must be viewpoint neutral.
Unless the board designates otherwise for a specific meeting, public comment at these quarterly meetings is an opportunity to direct comments to the board and is not intended to permit interrogation of the board or its members nor to engage in a dialogue and any specific questions raised in the public comment will be addressed to the president, who will typically refer the question to the superintendent for a detailed response to the individual at a later time.
At board business meetings, those typically semi-monthly, public comment will be received only in writing before the meeting. Such public comment will be delivered to the superintendent’s office by a stated deadline before the meeting and will then be shared with the board members prior to the meeting. During a designated portion of the board meeting, board members are encouraged to share and discuss public comment that has been received by them individually or submitted to the entire board.
The board may solicit oral testimony or reports from staff or other specific individuals during its meetings, but these will not be considered to be public comment.
At the May 18, 2022 Board meeting, Director Wilson introduced his own proposed amendments to GC-12. Director Berg was unable to convince the Board to postpone final action on that proposal in order to address it in more detail. The remainder of the Board was under the impression that the policy revisions needed to be adopted before the revision to the OPMA went into effect in June. With only one amendment, the policy revisions were adopted in spite of Director Berg's no vote.
Copyright © 2021, 2022 John R. Berg - All Rights Reserved.