Rebuttals
Why?
In order to 'set the record straight" and avoid contention during Board meetings, this page is included to rebut or counter claims and statements made during Board meetings, through email, the internet, and other media.
It is a violation of Robert's Rules of Order to call another member a liar during a meeting, or to attack their character or motives.
Specific issues covered on this page:
Is Director Berg Responsible for the SK Board Being Sued?
Did Director Berg Rule Director Daily's Motion Out of Order?
Were Daily's May 19th Accusations posted on this Website?
What is the motion Previous Question?
The difference between consent agenda and consent calendar
When is a lawsuit not a lawsuit?
Did Dir. Berg speak for the board in letters to the editor?
Was Director Berg Threatened with GOP Expulsion over CRT?
See Also:
Is the purpose of this website to attack Director Daily?
Director Berg's Response to Director Daily's Accusations
Complaint against Dir. Berg with National Association of Parliamentarians
Complaint against Dir. Berg with Public Disclosure Commission
Dir. Daily's remarks on the Dir. Berg's nomination to be Board President
Accusations on Dir. Berg's relationship with The Aspen Group
Response to Director Daily's February Comments on Governance
Context
In preparation for the Board's March 2, 2022 consideration of the adoption of revised Governance Culture policies and proposed Bylaws, Board members were invited to submit their proposed amendments for distribution to the Board in advance of the meeting. Click here for more details and the full text of these documents..
Below is Director Berg's rebuttal to Director Daily's remarks. Director Daily's remarks will be quoted in full line-by-line, followed by Director Berg's response.
Director Berg's Rebuttal
DAILY WROTE:
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.
BERG RESPONDS:
There is no disagreement that the School Board and its members are bound to obey Federal and State Laws as well as County and City ordinances.
DAILY WROTE:
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.
BERG RESPONDS:
The use of the term "clearly" is not appropriate since Director Daily has given no specific example of which current board policy, procedure or bylaw does not have the force of law. On the contrary, Washington State Law, RCW 28A.320.040 specifically grants the school board "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."
If Director Daily has identified specific policies and procedures that are not in accordance with the law, he should propose specific amendments to correct them rather than just throwing out the baby with the bath water.
DAILY WROTE:
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.
BERG RESPONDS:
It is unclear what is meant by "not substantiated by laws". Under RCW 28A.320.015 (1) (c), the Board has “Such powers as are necessarily or fairly implied in the powers expressly authorized by law.” Therefore the Board can act as specifically authorized by law and as deemed necessary to accomplish its lawful duties. The board cannot do things specifically prohibited by law. The fact that Director Daily has filed two legal actions against the South Kitsap School Board is evidence that Board actions can be challenged. Whether or not the court will overturn any Board actions is another matter.
DAILY WROTE:
As I see it, there are at least five important issues to consider.
The WA State Ethics Commission, AG, and the courts will not support unenforceable parts of any board polices that violate constitutional or individual rights.
BERG RESPONDS:
The Washington State Ethics Commission has no jurisdiction over local school boards. lt only applies to "state officer or state employee" (RCW 42.52.020) and specifically defines those positions in RCW 42.52.010 (18) & (19). School districts and school board directors are not included.
In spite of Director Daily's alleged correspondence with the Washington State Attorney General, the AG's office has said nothing to the SK School about not supporting any unenforceable or unconstitutional parts of SK Board policy.
While the Kitsap County Superior Court could overturn Board decisions in response to Director Daily's two [now three] appeals, it has not yet done so.
DAILY WROTE:
As duly elected board directors we have all taken an oath of office. This oath is not conditional, we each may assert our rights to sit on this board and no rules or board conditions or policies can change that.
BERG RESPONDS:
It appears that Director Daily is asserting that his "rights sit on this board" cannot be infringed upon. This ignores the above-stated RCW that grants the Board authority to make bylaws for its own government.
Every organization has an inherent right to maintain order at its meetings and to silence an unruly member who refuses to obey its adopted rules of conduct. Even the United States Senate has the power to expel a member.
DAILY WROTE:
State law provides for board director recalls, which is the only way to successfully remove any board member.
BERG RESPONDS:
That is incorrect. There other ways in which a school board member can be removed from office. These are detailed elsewhere on this website.
DAILY WROTE:
Roberts Rules of Order are not policies, not laws, not rules with any force of law. In fact as the Aspen group seems to have intonated, RROO’s have little if any place in board policies.
BERG RESPONDS:
The Aspen Group did not "intonate" or state that Robert's Rules of Order Newly Revised have no place in board policies. Aspen, in fact, included two references in their proposed policies that specifically stated that the meetings are to be conducted according to Robert's Rules of Order Newly Revised (GC-2, #8 and GC-4, 1, c).
(The correct abbreviation for the book is "RONR", not "RROO", which fact can easily be ascertained by opening the book to its seventh page. Also, there was nothing musical in The Aspen Group's workshops, so nothing was "intonated".)
DAILY WROTE:
RROO's are simply guidelines to be used to manage and run group meetings. They may be desired, but they are not required.
BERG RESPONDS:
That statement is reminiscent of the comical line from the movie Pirates of the Caribbean. When the character Elizabeth attempted to invoke the "Pirates' Code", she received the response, "The Code is more what you'd call 'guidelines' than actual rules." The book RONR is generally referred to as Robert's Rules or Order -- how could they not be rules?
The current Board policy, and the proposed bylaws, designate RONR as the board's "parliamentary authority". Wikipedia states: A parliamentary authority is a book of rules on conducting business (parliamentary procedure) in deliberative assemblies. A group generally creates its own rules and then adopts such a book to cover meeting procedure not covered in its rules."
There is the legal principle of incorporation by reference in which one document includes the provisions of a second document by only mentioning the second document. This legal principle is codified in the District of Columbia Nonprofit Corporation Act, Section 29-40.50 (e), which provides that when the bylaws adopt a book as the specified parliamentary authority, the rules in that parliamentary authority are treated as provisions of the bylaws.
DAILY WROTE:
To be clear, they [RONR] are not enforceable and carry no weight in a court of law.
BERG RESPONDS:
The enforceability of the rules in an adopted parliamentary are so well understood by most, that few appellate courts are called upon to specifically rule on that issue. Director Daily has nevertheless made that very challenge in his first lawsuit against the Board (Daily v. SKSD (1) filed in August 2021. Since that time no evidence or legal citations have been submitted in support of that claim. It is highly unlikely that he will be able provide any legal support for his claim that RONR, when adopted as a parliamentary authority, is not enforceable and carry no weight in a court of law.
There is an opinion from the New York State Attorney General that relates to the authority of an adopted parliamentary authority. Opn. No. 1978-313 (Ops. N.Y. Atty. Gen. Dec. 19, 1978) reads, in part:
The Charter of the City of Poughkeepsie specifically authorizes the Common Council to adopt "all the necessary rules and regulations for its own conduct and procedure." We believe that implicit in this authorization is the power to discipline members. While the Council's Rules and Regulations make no provision for its enforcement, Chapter XX of Robert's Rules of Order does set forth disciplinary procedures which include various forms of punishment for disorderly members. Among the measures which are available is the right to use such force as is reasonably necessary to remove the offender from the meeting room. The adoption of Robert's Rules of Order, therfore, [sic] should provide sufficient authorization for the discipline of a disorderly member, including reprimand, suspension or expulsion.
DAILY WROTE:
The Revised Code of Washington at 42.30 is the law in accordance with the OPMA. Violations of this law are borne by the individual, thus the district risk pool will not represent or protect violators.
BERG RESPONDS:
RCW 42.30 is not just "the law in accordance with the OPMA", it is the OPMA. Chapter 42.30 of the Revised Code of Washington is designated as the "Open Public Meetings Act of 1971" (RCW 42.30.900).
The act does provide that penalties for violation of the OPMA are a personal liability of the members of the governing body violating the OPMA. Without reading the exact provisions of the insurance coverage for the school board directors, insurance for directors typically does not cover willful wrongful acts of directors (such as attacking a visitor at a board meeting), but do cover directors' acts in taken good faith in the normal course of their duties.
As far as the costs of defending a director, those costs can be born by the District as authorized by RCW 28A.320.100. Otherwise, no one would be willing to volunteer to serve as a school board director if they were personally liable for legal costs of defending against anyone who has the $240 to file a lawsuit against them. OPMA, (RCW 42.30.120 (4)) specifically states that "any public agency which prevails in any action in the courts for a violation of this chapter may be awarded reasonable expenses and attorney fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause." This contemplates that the agency (the District) will be incurring legal costs in defending against an alleged violation of the OPMA.
DAILY WROTE:
Thus anyone of us voting on any policy, process, or procedure that violates the OPMA will subject you individual and personal liability.
BERG RESPONDS:
Voting for a policy, process, or procedure that would violate the OPMA is not in itself a violation of the OPMA. For example, if the Board were to adopt a policy that requires all individuals in attendance at a Board meeting to disclose their names before being allowed into the room, voting to adopt that policy initially would not be a violation of the OPMA, while trying to enforce the policy would. Since violation of the OPMA is not a criminal act (RCW 42.30.120(3)), planning to violate it would not constitute either criminal conspiracy (RCW 9A.28.040) or criminal attempt (RCW 9A.28.020).
Director Daily has failed to provide any recommended amendments to the proposed documents. Nor has he provided any sources to back up his legal claims.
DAILY WROTE:
None of us are attorneys of course. We all must make our own personal choices in these matters. I believe it is best to choose carefully who you speak with when relying on how past boards and their members 'managed' prior boards.
Please do not reply to this message.
Response to Director Daily's March Comments on Governance
Context
In preparation for the Board's March 17, 2022 consideration of the adoption of revised Governance Culture policies and proposed Bylaws, Board members were invited to submit their proposed amendments for distribution to the Board in advance of the meeting. Click here for more details and the full text of these documents.
Below is Director Berg's rebuttal to Director Daily's second set of remarks submitted for the March17th meeting. Unlike the rebuttal to Director Daily's February remarks above, his March remarks will be not quoted in full line-by-line, but will be referenced in Director Berg's rebuttal below.
Director Berg's Rebuttal
Governance Culture policies are those policies that the Board has adopted for its own governance, and constitute the 'bylaws' by which the Board functions.
Washington State Law, RCW 28A.320.040 specifically grants the school board "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 overriding tone of Director Daily's remarks are that the Board has no authority to regulate its own members. This is contrary to the law cited in the preceding paragraph. Director Daily wrote, under GC Policies, b. GC-2, Item #3, "Nice ideals to strive for but you cannot legislate behavior and most are not legally enforceable." He than rambles on about lying and hiding things from the public.
The next paragraph, Item #4, he complains that he does not take part in the agenda planning. I agree that the entire board should be involved in agenda planning. See my remarks on that topic elsewhere on this website.
HIJACKING
Under Item #5, Director Daily writes, "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 [sic] issue to fix a problem that doesn't exist."
The consent agenda at the board meetings is intended to contain routine, non-controversial items that are combined and adopted with one vote, typically without debate. Under the Board's previous policy, a majority of the Board was required to remove something from the agenda and consider it separately. This is consistent with the WSSDA model policy, but not with Robert's Rules of Order Newly Revised (12th ed.), properly abbreviated as RONR. Under RONR, one member can have an item removed from the consent agenda for separate consideration. When there is a conflict between rules in RONR and Board policies, the Board policy prevails. (To take something off the meeting agenda and not consider it at all requires a majority.)
While I preferred the RONR rule of one member being able to take something off the consent agenda (in order to promote free debate), it was the Aspen Group that warned that one member could hijack a meeting by taking most items off the consent agenda for separate consideration. Requiring two members to take an item off was a compromise arrived at in the January workshop with the Aspen Group.
Actually, the time taken up in Board meetings by Director Daily to address individual items on the consent agenda is not minimal but rather substantial.
BOARD DIRECTING THROUGH POLICY
GC-2, paragraph 6 states, "The Board will direct the district through policy. The Board's major focus will be on the results expected to be achieved by students, rather than on the operational choices made by the Superintendent and staff to achieve those results."
This is the wording recommended by The Aspen Group. Director Daily claims that this statement from the Aspen Group is not consistent with the Aspen Group's own Coherent Governance (R) model and needs to be revised. (See Coherent Governance.) The purpose of Coherent Governance is to have the Board avoid micro--managing the District, yet Director Daily writes, "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."
UNANIMOUS BOARD DECISIONS
Under Item #7. Director Daily is proposing that all important Board decisions must be unanimous, including any decision to end debate. This would effectively give any one Board member veto authority over the rest of the Board. This is contrary to the basic principle of majority rule. (How can the United Nations Security Council effectively deal with the conflict in Ukraine when Russia has veto power in the Security Council?)
If every decision that Director Daily voted against failed, the entire District would cease to function. He consistently votes against all expenditures, including regular payroll.
ROBERT'S RULES OF ORDER
Much like the Pirates' Code in the movie Pirates of the Caribbean, Director Daily believes that Robert's Rules of Order is more like guidelines rather than actual rules. In his first lawsuit against the School Board, he argues that RONR has no legal force of law (page 5 of Summons and Complaint). He also claimed that is was nowhere in Board policy, even when the Board had adopted RONR as their parliamentary authority in the former Governance Policy GP-2-E5 and now in Policy GC-12.
As cited above, the State Law authorizes the Board to adopt bylaws for their own government. The Board's bylaws consists of these governance policies. Rather than including all of the procedural rules in the policies, the Board through policy adopts RONR at its parliamentary authority so that the RONR rules apply unless they conflict with other Board policy.
Director Daily fails to accept this concept. When a group of individual join together for a game or activity, the usually agree to follow certain rules. When one person insists that the rules do not apply to them, there is bound to be some dysfunction and contention. That dysfunction is not the fault of the rules, nor of the referee, but of the individuals who refuse to accept that the rules apply to them.
For this reason, Director Daily objects to all references to RONR in GC-2, paragraph 8, GC-4, item 1 c, and what is now the section of GC-12 on meeting conduct.
BOARD MEMBER CODE OF CONDUCT (GC-7)
Consistent with Director Daily's belief that the rules don't apply to him, he objects to an attempt by the Board to impose rules of conduct upon its members. He writes, "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/supressing individual rights is exactly the opposite of the transparency we seem to talk about."
ADDRESSING BOARD MEMBER VIOLATIONS (GC-9)
Director Daily writes only "h GC-8 No comments I would avoid this one. Under litigation."
The litigation to which he refers is Jeffery Daily v. South Kitsap School Board [1], in which he claims that the Board process for addressing board member violations in not legal. It was previously GP-12, and is reads identically as the new CG-9. That policy is based upon and similar to the WSSDA model policy #1825, and most districts in the State have similar provisions in their policies.
BYLAWS IN GENERAL
Director Daily writes, "The concept of bylaws is a certain board member's initiative and those views were not shared with/by 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 policies 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."
The reference to "a certain board member's initiative" appears to be directed at Director Berg. The concept of taking former Governance Policies that were not included in the Aspen Group's recommended Governance Culture Policies and putting them in a document called bylaws, was not Director Berg's idea, it was proposed by the Aspen Group over Director Berg's objection. Director Berg wanted all of the applicable policies together in one document.
The fact that Director Daily has challenged some of the Board's policies in court does not prohibit the Board from continuing its work until their is some ruling from the court. (If someone filed a suit challenging the District payroll policies, would the District have to stop paying all payroll until the lawsuit was decided? Obviously anyone with the $240 to file a lawsuit cannot bring the work of the District to a halt until there is a court ruling.)
The WA State Ethics Board is cited because in Director Daily's first lawsuit claims that the provisions of RCW 42.52 should apply to school boards. The Board's legal counsel does not agree with that opinion. When lawyers disagree, the one with the black robe will decide.
SEVEN MEMBER SCHOOL BOARD (Bylaw #2, now GC-11)
Director Daily proposed a seven-member school board. However that would require a change in state law and is not a decision that the Board can make now.
BOARD MEETINGS AND THE OPMA (Bylaw #3, now GC-12)
Director Daily's second lawsuit addresses the Board's compliance with the Washington State Open Public Meetings Act (RCW 42.30).
Director Daily believes that there should be more public comment before any major decision and that there should be no restrictions upon who may speak to the Board. He also believes that there should be more room for visitors at the Board meetings. (Prior to COVID, there were typically less than five visitors in the audience at in-person Board meetings.
The OPMA is clear that there can be no restrictions nor conditions upon any members of the public attending board meetings, other than rules of civil behavior. Thus the Board cannot require visitors to sign in or give their name in order to attend. The OPMA does not address the public comment portion of Board meetings, and it is common for all boards (city councils, school boards, etc.) to require those addressing the Board to identify themselves. Director Daily claims that anonymous individuals should be allowed to address the board. Current and past Board policy has required those wishing to address the Board to identify themselves.
There is a difference between attend, participate, and speak. A member of the public may attend a session of Congress, from the visitors' gallery, but may not participate by speaking, shouting, applauding, or whatever. In order to address Congress, it must be done by appointment during a designated public hearing. If one has a ticket to attend a concert, that conveys the right to be there and to listen, and even to applaud or cheer when appropriate, but it does not convey the right to go on the stage and perform. Anyone not complying will be ejected.
Attending the Board meeting is not the same thing as speaking to the Board during a meeting.
[See also March 2022 changes to the OPMA.}