The Washington State Constitution allows voters to recall an elected school board director for having "committed some act or acts of malfeasance, or misfeasance while in office, or who has violated his oath of office".
State Law (RCW 29A.56.110 through 300) details the process. A petition must be collected with 35% of the signatures cast in the election for the director's office when last elected. For those directors elected in 2019, that would amount to between 5727 and 5828 signatures.
It is much easier for the voters to avoid "voters' remorse" by making informed decisions in the first place. This is why detailed information was provided on all current candidates on this website.
It is interesting to note that only 16,481 people voted in the last election for South Kitsap School Board Directors, and that was in a November General Election. Compare that to the 19,832 who voted on the February 2021 school levy, when only the levy was on the ballot. More attention is needed in the School Board elections.
A censure is a formal statement of strong disapproval, reprimand, or rebuke. It is typically done by a legislative body or other organization with a majority vote to express its collective opinion regarding the actions of another.
A censure may or may not have penalties for the targeted party, depending upon the authority of the censuring body over the targeted party. Without specific penalties included with the censure, the effect is nothing more than a strong rebuke or statement of disapproval.
Censure should not be confused with censor, which is to restrict a person's communication. Rather than restrict a person's rights of free speech, a censure holds a person accountable for their speech.
The Ninth Circuit U.S. Court ruled on whether a school board's retaliation against a fellow board member's speech actually restricted free speech. The court wrote :
Ken Blair maintains his First Amendment rights were violated when his fellow school board members voted to remove him as their vice president because of his relentless criticism of the school district’s superintendent. The district court disagrees, and so do we. To be sure, the First Amendment protects Blair’s discordant speech as a general matter; it does not, however, immunize him from the political fallout of what he says. (Blair v. Bethel Sch. Dist.,608 F3d 540 (9th Cir. 2010))
South Kitsap School District Governing Policy GP-12 provides a process for addressing director violations. The third item in the list is "Consider public censure of the offending director of the Board."
Since there is no additional District policy directions on the process of censure, the Board's adopted parliamentary authority, Robert's Rules of Order Newly Revised (12th ed.), also known as RONR, prescribed the process.
RONR provides that the first step in a disciplinary process is the appointment of a committee to investigate the matter and report back with a recommendation. (RONR 63:7-12)
The Washington Open Public Meetings Act (RCW 32.30.110(f)) allows the Board to meet in executive session to consider charges brought against a public officer or employee, unless the accused requests that the meeting be held in public.
After consideration of the investigating committees report, the Board may then take disciplinary action, such as a motion to censure. The accused would not be permitted to vote on the matter (RONR 61:17, 63:33(c). The Board could even disregard the recommendation of the committee and decide otherwise if it chooses (RONR 63:12n8).
An elected Board member cannot be removed from office by the remainder of Board unless that Board member has four consecutive unexcused absences from regular board meetings. (RCW 28A.343.390)
A Board member could be removed from office through a recall by the voters as described above.
A Board member could be removed from office automatically if they lost their right to vote and hold public office. This happened a few years ago to the King County Assessor who was convicted of a felony DUI. (RCW 28A.343.340)
A Board member's position could also become vacant through death, resignation, or other conditions specified in RCW 42.12.010.
At the April 21,2021 meeting of the South Kitsap School Board, a "Board Referral Form" was approved which appointed two committees to each respond to alleged offences and improprieties of Director Jeff Daily and to draft alternate resolutions of censure, or to recommend that no action be taken. The motion was introduced by Director Berg.
The Board Referral Form did not state any specific charges, in conformity with Robert's Rules of Order Newly Revised (12th ed.) 63:11, which requires an investigation before any formal disciplinary action and specifies that the initial motion should not include specific charges in order to protect individuals who may be innocent.
At the May 5, 2021 Board meeting, upon the advice of the District's legal counsel, the previous action was amended to specify that the investigation would be conducted by the District's Risk Pool investigators.
After a four-month investigation, during which both Director Daily and his attorney had an opportunity to respond, the 225-page report was completed and delivered to the District's Legal Counsel, and subsequently to Superintendent Winter.
The report was designated as an attorney-to-client document exempt from public disclosure. It was later filed with the Kitsap County Superior Court and can be found by clicking here.
While normally the Board would consider allegations of misconduct of a public official in executive session, Director Daily has requested, as is his right under State Law, that the matter be considered in an open, public meeting.
The Board could respond to the report by dismissing the charges, or they could adopt a resolution of censure, or take any action in between. The Board could also just ignore the report, in which case the matter would die as of the first meeting in December when the newly elected Board members take office.
After the report was filed with the court on October 4, 2021 and made a matter of public record, the Board adopted the following motion on October 20, 2021:
Inasmuch as the August 3, 2021 report regarding Director Daily prepared in response to the Board action of April 21, 2021 has been reviewed by the Board members and has now been made available to the public, the Board deems that no further Board action need be taken on the matter.
Director Daily opposed the motion, stating that it was illegal for the board to take such action when there was a lawsuit pending seeking to have the court order the Board to take that very action.
The process of considering censure of Director Daily was completely independent of other allegations against other Board members by Director Daily.
Director Daily's April 21, 2021, charges against Director Berg were dismissed by the Board on May 19, 2021.
Director Daily's charges against Directors Gattenby and Sebren presented at the May 19th meeting were ruled out of order, and the Board voted not to address them again on July 21, 2021, when Director Daily moved to investigate the charges.
On August 18, 2021, Director Daily initiated legal action against the South Kitsap School Board, appealing its July 21st decision to not investigate Directors Gattenby and Sebren. The initial complaint also seeks leave to move for an an emergency temporary injunction staying the Board process of censure against Director Daily. Since this a pending legal action, no further comment will be made here.
Henry M. Robert, the original author of what is now Robert's Rules of Order Newly Revised (12th ed) (RONR), wrote,
The great lesson for democracies to learn is for the majority to give to the minority a full, free opportunity to present their side of the case, and then for the minority, having failed to win a majority to their views, gracefully to submit and to recognize the action as that of the entire organization, and cheerfully to assist in carrying it out, until they can secure its repeal. (Henry M. Robert, Parliamentary Law (1923; reprint, New York: Irvington Publications, 1975), p. 4; quoted in RONR, p. xlvii)
In accordance with this principle, there is a generally recognized duty of board members, called a duty of obedience, which requires members of a board, who may have been in the minority on a given decision, to comply with the decision of the board and to not actively work to undermine the implementation of the board decision.
Under RONR 43:24, "In debate, a member cannot reflect adversely on any prior act of the society that is not then pending, unless a motion to reconsider, rescind, or amend it is pending, or unless he intends to conclude his remarks by making or giving notice of one of these motions."
Washington State Law, (RCW 28A.320.040) 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.
Thus, when the Board adopts a lawful policy for its own government, all Board members are obliged to comply with that policy.
In the same way that a state legislator who votes against a law is still obligated to obey that law when adopted, a school board member who votes against a policy is still bound to obey that policy when adopted by the majority of the Board.
An elected school board member has a right to speak at school board meetings, unless a motion is adopted by a two-thirds vote to close or limit debate, or board policy otherwise limits debate, such as on a consent agenda. That right to speak does not include the right to interrupt another member speaking or to speak out of turn, or to make personal attacks against another member, all of which are prohibited by the rules adopted by the Board (RONR).
That right to speak does have consequences, however. The U.S. Ninth Circuit decision in Blair v. Bethel School District (608 F3rd 540 (9th Cir. 2010)) stated (with emphasis added):
Ken Blair maintains his First Amendment rights were violated when his fellow school board members voted to remove him as their vice president because of his relentless criticism of the school district’s superintendent. The district court disagrees, and so do we. To be sure, the First Amendment protects Blair’s discordant speech as a general matter; it does not, however, immunize him from the political fallout of what he says.
It is normal and appropriate for anyone to give appropriate weight to another person's opinions in direct proportion to the trust and confidence placed in the person expressing the opinions.
When a single Board member has clearly demonstrated a pattern of opposing the remainder of the Board on nearly every issue, the remaining members of the Board have every right to disregard that dissenting member's opinions. The purpose of debate and amending a proposal before its adoption is to take into consideration all views and produce a proposal most likely to receive sufficient votes for adoption. When one member has demonstrated a clear propensity to not vote in favor of nearly all proposals, it would be a waste of time and effort for the remainder of the Board to amend any pending proposal to conform to the wishes of the dissenting member since a vote from that member for final adoption is highly unlikely. In other words, why lower the price in negotiations if the buyer is not going to buy anyway at any price.
While allowing the dissident member to speak within the rules of the Board, the majority of the Board can:
1. Decline to respond to the dissent member's remarks.
2. Decline to ask questions of the dissident member that would prolong debate.
3. Decline to respond to questions asked by the dissident member that would prolong debate.
4. Vote against any or all motions made by the dissident member.
5. Set time limits on specific agenda items or time limits on individual speeches.
The Board cannot generally restrict the rights of specific members except through disciplinary action.
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