In the many different types of difficult situations that may face a school district Governing Board, none can be so challenging as a Governing Board member who makes an unauthorized statement to the press or refuses to recuse him or herself when faced with a conflict of interest.  When it comes to board members and discipline, a school district Governing Board does not have the authority to discipline a Governing Board member itself, there are actions that can be taken to address unauthorized statements and potential criminal penalties or removal from office to address a failure to recuse.

When a Governing Board member makes an unauthorized statement to the press of any nature it is important to clarify with what authority the statement was made.  Governing Board members do not have the authority to speak for or act on the behalf of the school district without explicit authorization from the Governing Board as a whole.  Assuming that the statement was not authorized by a Governing Board vote, the Governing Board member’s statement would not be considered the position of the school district, but rather the personal opinion of the Governing Board member who made it.

Even though the unauthorized statement cannot be directly attributed to the school district, the public may still perceive it as the school district’s direct statement.  To counteract this misperception, the Governing Board may issue a statement during a properly noticed and agendized public meeting or contact the press affiliate which ran the statement seeking a clarification or correction to be published in the next available broadcast or publication.

There may be several reasons that the Governing Board may wish to refrain from commenting further in the public forum, particularly if there is the potential for or active litigation involved.  It is always preferable to contact legal counsel before issuing a statement, before seeking a clarification or correction, and for assistance with crafting the language of the statement or the request to the press affiliate.

When a Governing Board member has a conflict of interest, or even the appearance of a conflict of interest, regarding a decision to be made by the school district Governing Board as a whole, the best practice is for that Governing Board member to recuse himself or herself and refrain from participating in the discussion, vote, execution, or any other action relating to that item.  However, if a Governing Board member refuses to recuse, the Governing Board’s options in forcing recusal are very limited.

Arizona Revised Statues (“A.R.S.”) §15-323(A), which addresses school district Governing Board member voting eligibility, states,

“A. Notwithstanding any other provision of law, a governing board member is eligible to vote on any budgetary, personnel or other question which comes before the board, except:

It shall be unlawful for a member to vote on a specific item which concerns the appointment, employment or remuneration of such member or any person related to such member who is a spouse or a dependent as defined in section 43-1001.

No member may vote on the employment of a person who is a member of the governing board or who is the spouse of a member of the governing board and whose membership on the board and employment are prohibited by section 15-421, subsection D.” Emphasis added.

What this statutory language provides is that other than a vote on an item concerning the appointment, employment, or remuneration of the Governing Board member in question or said Governing Board member’s spouse or dependent, the Governing Board member may vote on the item as long as the vote is not prohibited by any other applicable law.

School district Governing Board members are considered “public officers” as that term is defined in A.R.S. §38-502(8).  A.R.S. §38-503 provides,

“A. Any public officer or employee of a public agency who has, or whose relative has, a substantial interest in any contract, sale, purchase or service to such public agency shall make known that interest in the official records of such public agency and shall refrain from voting upon or otherwise participating in any manner as an officer or employee in such contract, sale or purchase.

Any public officer or employee who has, or whose relative has, a substantial interest in any decision of a public agency shall make known such interest in the official records of such public agency and shall refrain from participating in any manner as an officer or employee in such decision.” Emphasis added.

What this statutory language provides is that a school district Governing Board member who has, or whose relative has, a substantial interest in any contract, sale, purchase, or other decision of the school district is required to disclose the conflict of interest and to recuse himself or herself from voting or participating in any way with regards to the item which is the source of the conflict.

If the school district Governing Board member refuses to recuse himself or herself from voting or participating with regards to an item which presents a conflict of interest, the Governing Board itself does not have any statutory authority to discipline that Governing Board member for voting or participating with regards to that item.  However, the Governing Board member who chooses to vote on or participate in an item which presents a conflict of interest may subject themselves to criminal penalties and removal from office.  A.R.S. §38-510 states,

“A. A person who:

Intentionally or knowingly violates any provision of sections 38-503 through 38-505 is guilty of a class 6 felony.

Recklessly or negligently violates any provision of sections 38-503 through 38-505 is guilty of a class 1 misdemeanor.

 B. A person found guilty of an offense described in subsection A of this section shall forfeit his public office or employment if any.

 C. It is no defense to a prosecution for a violation of sections 38-503 through 38-505 that the public officer or employee to whom a benefit is offered, conferred or agreed to be conferred was not qualified or authorized to act in the desired way.

 D. It is a defense to a prosecution for a violation of sections 38-503 through 38-505 that the interest charged to be substantial was a remote interest.” Emphasis added.

It is important to note that the criminal penalties and removal from office mentioned in the above statutory language are not enforceable by the school district Governing Board directly but instead require the action of the relevant law enforcement authority.

If a school district Governing Board member makes an unauthorized statement the Governing Board can issue a statement or request the press affiliate which ran the statement to issue a clarification or correction.  This may help correct any public misperceptions, but it is important to confer with legal counsel prior to taking said actions.  If a Governing Board member refuses to recuse him or herself with regards to an item that presents a conflict of interest, the Governing Board cannot act directly to discipline the Governing Board member in question.  However, the Governing Board member who fails to reuse him or herself when faced with a conflict of interest may open him or herself up to criminal penalties and potentially removal from office.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Board Members and Discipline, or any other estate planning matters, please feel free to contact at  480.461.5300, log on to udallshumway.com,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.