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    • Home
    • School Board
    • Board Procedures
    • INDEX to WEBSITE
    • Board Policies
    • Meetings
    • Meeting Comments
    • Minutes
    • Frequent Players
    • Daily v SKSB [1]
    • Daily V SKSB [2]
    • Daily V SKSB [3]
    • Fact-checking Daily
    • Attacking Dir. Berg
    • Daily Accuses Others
    • Rebuttal to Claims
    • Letters
    • Fireside Chat
    • Parliamentary Tips
  • Home
  • School Board
  • Board Procedures
  • INDEX to WEBSITE
  • Board Policies
  • Meetings
  • Meeting Comments
  • Minutes
  • Frequent Players
  • Daily v SKSB [1]
  • Daily V SKSB [2]
  • Daily V SKSB [3]
  • Fact-checking Daily
  • Attacking Dir. Berg
  • Daily Accuses Others
  • Rebuttal to Claims
  • Letters
  • Fireside Chat
  • Parliamentary Tips

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? 

Director Daily's February Comments on Board Governance

Director Daily's March Comments on Board Governance

See Also:

Is the purpose of this website to attack Director Daily? 

Fact-Checking Director Daily

Attacking Director Berg

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

Is Director Berg Responsible for the SK Board Being Sued?

Source of Claim

Director Daily, Dave Kimble, and the CSSKS have all repeatedly blamed Director Berg for the School Board being sued in Jeffrey Daily v. South Kitsap School Board.


Director Berg is is only other Director referred to by name in the lawsuit (Complaint, page 7, line16).  Director Daily stated at the October 20, 2021 Board meeting that Director Berg "helped the District Into a Lawsuit".  (Video of the meeting at timepoint 2:26:05.)


Dave Kimble, in an email to the Board dated January 17, 2022, blames Director Berg for the costs to the District of responding to Director Daily's lawsuit.  He referred to the lawsuit as an effort to "pee on Director Daily's leg".  (Mr. Kimble was also the individual who served the papers on the District initiating the lawsuit.)


The CSSKS website, in referring to Director Berg as "Our Idiot of the Month", blames Director Berg for Director Daily's lawsuit.

Director Daily's Motivation

Clearly, Director Daily's decision to file a lawsuit against the School Board was his own decision, for which he is responsible. Apparently Director Daily  felt compelled to so because of Director Berg's actions, thus making Director Berg responsible for the lawsuit, at least in the mind of Director 

Daily.


An alternative motivation might be to cripple the Board's ability to act because of pending and continued litigation with injunctions and restraining orders.  This was disclosed in Director Daily's remarks at the Board meeting of November 17, 2021.  See the video of the meeting at timepoint 5:00, at which Director Daily said:


I have said this last meeting and I’ll say it again, this is all tied up in litigation. Mr. Berg has/is being served papers regarding a personal lawsuit, and an injunction that involves his interaction with the Board. Mr. Berg votes on these items. When they pass a temporary restraining order will go into effect and it is possible the item will be tied up for the duration of the lawsuit, which may take months. OK. It will cripple the Board’s ability to act as your actions may be construed by the courts as a violation of the court order. 

Objects of the Lawsuit

Director Daily sued the Board to appeal its July 19, 2021 decision to not adopt his motion to have an outside investigation of two other Board members (Directors Gattenby and Sebren).  The Board voted 1 to 3 against his motion, yet Director Daily blames Director Berg for the Board's decision and for Director Daily's own decision to sue the Board. 


Director Daily accusations against then Directors Gattenby and Sebren originated at the May 19, 2021 Board meeting, which was one month after Directors Gattenby and Sebren voted on April 21, 2021 to investigate Director Daily for possible censure.  Director Diehl did not vote to investigate Director Daily and no accusations were made against her.  Director Berg originated the motion of April 21, 2021 to investigate Director Daily, after which Director Daily presented accusations against Director Berg, which were dismissed by the Board on May 19, 2021.  


It would appear that the only way that the Board's decision to not investigate Directors Gattenby and Sebren could be blamed on Director Berg would be if Director Berg prompted Director Daily's need to accuse Gattenby and Sebren in the first place by Berg's introducing the motion that Gattenby and Sebren voted yet on.


Of the ten requests made of the court in the lawsuit, the eighth was "Granting leave to Petitioner to make a motion, and set a hearing before this Cout, for a reeliminary injunctionn Staying any censure proceedings against Petitioner Mr. Daily for the pendency of this action".  (Since this part of the lawsuit was in response to Director Berg's original motion in April, there is some causal effect.) The suit therefore also attempts to stop the Board from pursuing its investigation of Director Daily.  In effect, the lawsuit is saying that the Board must investigate Directors Gattenby and Sebren but must not investigate Director Daily.  (The investigation of Director Daily was concluded, the report was made public, and the Board voted on October 20, 2021 to take no further action on the matter.  That part of the lawsuit is now therrefore moot.)

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Did Director Berg Rule Director Daily's Motion Out of Order?

Source of Claim

Director Daily, in his lawsuit (Complaint, page 7, line16), stated that Director Berg ruled as Out of Order his July 21, 2021 motion to appoint an outside investigator to investigate charges against Directors Gattenby and Sebren.    (Video of the meeting from timepoint 1:27:40 to 1:34:50; the specific Out of Order is mentioned at 1:29:40.)

The Record shows:

Director Berg, presiding in the absence of Board President Gattenby, did not rule Director Daily's motion Out of Order.  He only mentioned that Director Daily previous action in May 19th was ruled Out of Order.  Director Sebren later mentioned that same fact. See also further discussion of the previous matter.


If the motion were in fact ruled out or order, it would not have been discussed and voted upon.

Were Daily's May 19th Accusations posted on this Website?

Source of Claim

Director Daily, at the the July 21, 2021 Board meeting, stated that Director Berg posted Director Daily's May 19th accusations against Directors Gattenby and Sebren on this website.  (Video of the meeting from timepoint 1:27:40 to 1:34:50; the specific issue is mentioned at 1:30:30.)


Director Berg denied that they were posted on this website which Director Daily disputed and said, "We have a screen shot".

The Record shows:

The next day, July 22, 2022, Director Berg emailed Director Daily and his attorney the following:

 

You stated repeatedly at the July 21st Board meeting that I posted on my website the text of your May 19th allegations against Directors Gattenby and Sebren.  I denied that I posted them.  You insisted that you had a "screen shot" as proof.


I distinctly remember making the decision to not attempt to post the text of the allegations since they were ruled out of order at the time.  While I discussed you making the accusations on my website, I did not include a copy of them.  I first saw them posted on your Citizens Supporting South Kitsap Schools website, which I assume Mr. Kimble received from you to post there.  Unless I receive such a "screen shot" or other proof that I did indeed post the allegations on my website, I will continue to assert that your statements made at the open board meeting were false.


As requested by your attorney's letter of May 18, 2021, a copy of this email is going to your attorney.  


The only response came from Director Daily's attorney, requesting that Director Berg correspond with her and not with Director Daily.  


No screen shot or other proof was ever submitted.  Why would someone claim to have proof and then refuse to produce it, unless there were no proof in the first place.  It is nearly impossible to prove a negative, therefore the burden of proof is on the party who claims that something did occur.  (For example, that someone robbed a bank could be proven, but it is nearly impossible to prove that someone never robbed a bank.)


Only after the allegations were included in documents submitted to the Superior Court on  and readily available to the public were they posted on this website.


Giving Director Daily the benefit of the doubt, he could have been thinking of his allegations being posted on the CSSKS website, or the fact that his allegations against Director Berg were indeed posted on this website.

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What is the motion Previous Question?

Source of Claim

There appeared to be some confusion between the parliamentary terms Move the Previous Question, Call for the Question and a motion to End Debate.


At the November 17, 2021 Board meeting, Director Sebren moved to End Debate on a motion, and that motion to End Debate was defeated.  Director Diehl then Called for the Question.  Director Berg, presiding, pointed out that the two terms were synonymous.  Director Daily disagreed and insisted that they were two different things.

Robert's Rules of Order says:

Robert's Rules of Order Newly Revised (12th ed), known as RONR, states at 16:6, under the topic of Previous Question:


Equal Application of Rules to Nonstandard Forms Such as “Call for the Question.” A motion such as “I call for [or “call”] the question,” “I demand the previous question,” “I move to close [or “end”] debate,” or “I move we vote now” is simply a motion for the Previous Question made in nonstandard form, and it is subject to all of the rules in this section. Care should be taken that failure to understand this fact does not lead to violation of members’ rights of debate.


At the meeting, Director Berg attempted to clear up that "failure to understand" that the terms are synonymous.  


If one seeks an authoritative source for the meaning of parliamentary terms used in United States, RONR is the most widely accepted and used authority.

The difference between consent agenda and consent calendar

Source of Claim

At a Board workshop, during a discussion of the consent agenda, Director Berg referred to the consent agenda as a consent calendar.  Director Daily corrected him, to which Director Berg stated that the terms are synonymous.  Director Daily insisted that they were two different things.

Robert's Rules of Order says:

Robert's Rules of Order Newly Revised (12th ed), known as RONR, states at 41:32, under the topic of Consent Calendar:


Consent Calendar. Legislatures, city, town, or county councils, or other assemblies which have a heavy work load including a large number of routine or noncontroversial matters may find a consent calendar a useful tool for disposing of such items of business. Commonly, when such a matter has been introduced or reported by a committee for consideration in the assembly, its sponsor, or, sometimes, an administrator, may seek to have it placed on the consent calendar. This calendar is called over periodically at a point established in the agenda by special rule of order, at least preceding standing committee reports. The matters listed on it are taken up in order, unless objected to, in which case they are restored to the ordinary process by which they are placed in line for consideration on the regular agenda. The special rule of order establishing a consent calendar may provide that, when the matters on the calendar are called up, they may be considered in gross or without debate or amendment. Otherwise, they are considered under the rules just as any other business, in which case the “consent” relates only to permitting the matter to be on the calendar for consideration without conforming to the usual, more onerous, rules for reaching measures in the body.


The above describes what is also known as a Consent Agenda.  Nowhere in RONR is the term Consent Agenda used.  It is simply refers to a Consent Calendar.  The Board policy uses the term Consent Agenda.


If one seeks an authoritative source for the meaning of parliamentary terms used in United States, RONR is the most widely accepted and used authority.

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When is a lawsuit not a lawsuit?

Source of Claim

The Kitsap Sun, August 19, 2021, carried the headline " South Kitsap School Board member files lawsuit against the board" and the article repeatedly referred to the matter as a lawsuit.  


The Kitsap Daily News, aka Port Orchard Independent, on August 27, 2021, refers to the action as a "summons and complaint" and quotes Director Daily's attorney as saying, " While this looks in the caption like suing the board, it’s actually an appeal of a board decision and the failure of the board to make other decisions. So it’s not a lawsuit against the board. "


Director Daily himself referred to the matter as a lawsuit at the October 20, 2021 Board meeting.


Dave Kimble, in an email of January 17, 2022, insisted "And let us be absolutely clear, this current action is not a lawsuit. "

Definition of Lawsuit

Lawsuit is defined in Merriam-Webster's Collegiate Dictionary (11th ed.) as "as suit in law" or "a case before a court" (p. 705).  Suit is defined as "an action or process in a court for the recovery of a right or claim" (p. 1249).  Case is defined as "a suit or action in law or equity" (p. 191).


Other definitions of lawsuit include:

  •  a legal act of suing between private parties, or a case in a civil court (yourdictionary.com) 
  •  a proceeding by a party or parties against another in the civil court of law (Wikipedia)
  •  a civil legal action by one person or entity (the "plaintiff") against another person or entity (the "defendant"), to be decided in a court. (Cornell Law School, Legal Information Institute)
  •  a process by which a dispute between people or organizations is decided in court (merriam-webster.com)
  •  a case in a court of law involving a claim, complaint, etc., by one party against another (dictionary.com)
  •  a problem taken to a law court by an ordinary person or an organization rather than the police in order to obtain a legal decision  (Dictiionary.cambridge.org)
  •  a case in a court of law which concerns a dispute between two people or organizations (collinsdictionary.com)


The action in question is an appeal under State Law, specifically RCW 28A.645, regarding an appeal to the superior of a decision of a school board.  The statute itself does not use the term suit or lawsuit.


What the Court Documents Say

The action, Kitsap County Superior Court Case No. 21-2-01233-18, is titled "Jeffrey Daily, Petitioner vs. South Kitsap School Board, Respondent".  The first sentence of the Summons and Complaint says, "A lawsuit has been started against you" and "In order to defend against this lawsuit, ....".  On page two it states, "You may demand that the plaintiff file this lawsuit with the court"... and ... "Within fourteen days ... the plaintiff must file this lawsuit with the court, or the service on you of this summons and complaint will be void."  (If there was no lawsuit filed, the action would have been void after fourteen days.)


Accompanying the Summons (2 pages) was the Complaint (14 pages).

If you call a dog's tail a leg, how many legs does the dog have?

One, four, or five?


It really doesn't matter.  It is what it is, regardless of what you call it.  So don't get hung up over definitions.

Does Dir. Berg speak for the Board in Letters to the Editor?

Source of Claim

Director Berg had two letters to the Kitsap Sun published Sept 3, 2021 and October 25, 2021.   


The CSSKS website criticized Director Berg for attempting to speak for the South Kitsap School Board in writing a letter to the editor.

Sun Editor's actions

The September 3rd letter referred to school boards in Kitsap County and their directors but the body of the letter did not refer to Director Berg as a school board director.  


The letters to the editor were sent from John Berg of Southworth without mentioning that Director Berg was a member of the South Kitsap School Board.  The editor writes the headline for the letters and added "is also a member of the South Kitsap School District's board of directors" after "John Berg, Southworth".


The October 25th letter spoke of elections in general and mentioned that the writer happened to be an elected official but did not give any further identification.   The Sun editor did not add any mention of the writer being a member of the school board for that letter.


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Was Director Berg Threatened with GOP Expulsion over CRT?

Source of Claim

In an email of August 16, 2021, David Kimble insisted that the Republican Party threatened Director Berg with expulsion from the party if he did not not introduce the resolution on Critical Race Theory in the spring of 2021.

Director Berg's Response

The issue of Critical Race Theory came up after the passage of SB 5044, and was discussed briefly at the Board's June 2, 2021 meeting.  Since Superintendent Winter reported that CRT was not being taught in the SK Schools, Director Berg thought those concerned citizens could be assured of that fact if the Board adopted a resolution stating that CRT was not to be taught in the SK Schools.  Director Berg offered to draft a resolution on the issue for further discussion.


Director Berg identifies himself as a  Republican, even though he does not agree with all of the others who identify as Republicans.  He has been a  GOP elected Precinct Committee Officer since 2016 and was awarded the Kitsap County Republican Party's "2018 Republican Man of the Year Award".


Director Berg attended a GOP meeting on June 7, 2021 only to discover that the discussion topic was Critical Race Theory.  He mentioned to the group that he was preparing a resolution on the topic for the South Kitsap School Board and that attracted some interest.  It was not the other way around: Director Berg told them he was preparing a resolution, they did not tell him to draft it.


The resolution was presented at the July 16, 2021 Board Meeting and defeated on a vote of 2-3.  Only Directors Daily and Berg voted in favor of it.   Curiously, even though Superintendent Winter had stated that CRT was not being taught in the SK Schools, the public comment at that meeting, particularly from teachers there, suggested that it actually is being taught and that the teachers wanted it to be taught, or at least they opposed the resolution.


Following the defeat of the resolution, some GOP leaders strongly encouraged Director Berg to reintroduce that or a similar resolution, and they pressured another Board member to change their vote.  Director Berg  resisted the requests for another resolution and determined that that was not the right approach to the problem.


There was no threat to expel or otherwise punish Director Berg from GOP leaders in the County and particularly in South Kitsap.  When Director Berg heard of the rumor of threatened expulsion, he contacted GOP leaders in South Kitsap, and the County Chairperson of the Party and the rumor was denied by all.

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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.}


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