In July, Kirk Strang presented at WASDA’s Summer Legal Seminar on the topic of school district governance.
Kirk covered eight major talking points associated with school district governance, and we’re highlighting all of them in this blog series.
Thus far, we’ve covered:
- Part 1: New Laws Enacted
- Part 2: New Laws Proposed
- Part 3: Developments in Federal & Constitutional Law
Forthcoming installments include:
- Part 5: Employee Handbooks
- Part 6: Student Handbooks/Codes of Conduct
- Part 7: Vendor Contracts — Legal Capacity to Contract
- Part 8: Vendor Contract Clauses — Specifics to Examine & More
In Part 4 of the series, we’re directing our attention to the school board annual meeting — including notice of requirements, powers of the annual meeting, meeting essentials, and more …
NOTICE REQUIREMENTS
- The public notice of the time/place of the annual meeting shall be published twice.
- The second insertion may not be published more than 8 days before, nor less than 1 day before the annual meeting.
- The notice must be published either:
- In a newspaper likely to give notice in the area or to the person(s) affected, OR
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By other form of publication or posting, provided that it satisfies the requirements of Wis. Stat. 985.02(2).
If a school district elects to publish the notice by other form, Wis. Stat. 985.02(2) provides that the district shall post a notice in the following manner:
- “The notice must be posted in at least 3 public places likely to give notice to persons affected or must be posted in at least one public place likely to give notice to persons affected and placed electronically on an internet site maintained by the municipality.
- The notice posted before the act or event requiring notice shall be posted and, if applicable, placed electronically, no later than the time specified for the first newspaper publication.
- The notice posted after the act or event requiring notice shall be posted and, if applicable, placed electronically, within one week after the act or event. Actions of governing bodies posted after the act or event shall be effective upon posting.
- The affidavit of the officer or person posting the legal notice containing the time, place and manner of the posting is presumptive evidence of the facts stated therein.”
POWERS OF THE ANNUAL MEETING
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Agenda items that are within the power of the annual meeting (when properly noticed):
- Change the number of school board members. Wis. Stat. 120.02(1);
- Establish a plan of apportionment of school board members. Wis. Stat. 120.02(2);
- Approve a plan to assign a number to each seat on the school board. Wis. Stat. 120.02(4);
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Establish either: (1) an annual salary or; (2) a per-meeting payment for school board members;
The annual meeting may not elect to pay school board members via both methods. For example, if a Board President is compensated via an annual salary, the remaining board members may not be compensated via a per-meeting arrangement.
- Authorize payment of “actual and necessary expenses” of a school board member’s travel in the performance of his/her duties;
- There is some debate as to whether funds may be expended for a board member to attend educational conventions. I have concluded that education of board members has a bona fide public purpose; accordingly, an annual meeting could authorize payment for travel to such events.
- Authorize reimbursement for school board members for “actual loss of earnings when duties require the school board member to be absent from regular employment”;
- When do a school board member’s duties require him/her to be absent from regular employment? I generally feel that — because board members have a duty to attend board meetings — if a member must miss work to attend any meeting, it meets this standard.
- NOTE: If a school board member receives a salary from their regular employment, reimbursement is not appropriate, because actual earnings have not been lost.
- Authorize the school board to acquire real estate necessary for school district purposes. The school board must have the approval of the annual meeting to both purchase and rent real estate;
- NOTE: The annual meeting may authorize the purchase/rental of real estate, but it does not have the power to negotiate the particulars of that purchase/rental, (e.g., the price). That authority lies with the school board.
- Designate sites for school district buildings and provide for the erection or lease of suitable buildings;
- Authorize and direct an audit of the school district’s accounts pursuant to Wis. Stat. 120.14(3);
- “Direct and provide for the prosecution or defense of any action or proceedings in which the school district is interested”;
- Authorize the school board to furnish textbooks under particular conditions;
- Direct the furnishing and funding of school lunches for pupils;
- Vote to consolidate schools (or discontinue a school) in a union high school district;
- Vote a tax for the following:
- Sites, buildings, and maintenance of district buildings
- Transportation vehicles
- The operation of the schools of the district
- To discharge debts or liabilities of the district
- To create a school debt service fund
- To create a school capital expansion fund
- To fund the establishment, operation and maintenance of a recreation authority
NOTE: Although the powers of the annual meeting generally appear at Wis. Stat. 120.10, some powers of the annual meeting are referenced elsewhere.
For example, Wis. Stat. 120.13(25) — the provision concerned with school board “powers” — states that the school district can lease property with annual meeting approval. -
Agenda items that are NOT within the power of the annual meeting.
Many school districts include certain subjects on the agenda simply due to long-standing practice; these subjects may not be within the power of the annual meeting:
- A general “Other Business” agenda item. This item suggests to electors that they may raise any subject during this time, which is not necessarily appropriate. The agenda should identify each subject/item with specificity (if you accept my perspective that the petition process must be followed for citizens to add to the annual meeting “agenda”).
- Reports by school administrators. Most districts include a series of reports from school administrators at the annual meeting (besides the budget report). Although these reports are generally accepted, be aware that they are not strictly within the power of the annual meeting, and could be called out of order.
- Authorizing the sale of school district property that is no longer needed by the district. In 2015, the statute’s “Sale of Property” provision was removed from the powers of the annual meeting and added to the powers of the school board.
MEETING ESSENTIALS
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Voters: Ensure that voters are electors of the district. There have been instances of individuals — who are not truly electors of a district — seeking to vote at an annual meeting.
Remember that a voter can be challenged. If a voter maintains that they are eligible in the face of a challenge, the voter may be required to swear out an oath/affirmation: “You do solemnly swear (or affirm) that you are an actual resident of this school district and that you are qualified, according to law, to vote at this meeting."
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Budget report.
The school board must present a “full, itemized written report” of the accounts of the school district treasurer. Wisconsin Statute requires that this report be presented to the annual meeting by the school district treasurer.
This report shall be prepared by the school board prior to the annual meeting, and must include the items set forth in Wis. Stat. 120.11(3).
NOTE: This provision requires that the school board “meet” to examine the accounts of the treasurer and prepare the report. Accordingly, your timeline to prepare for the annual meeting must account for a properly-noticed meeting of the school board.
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Special Subjects (Wis. Stat. 120.09).
At least 60 days prior to an annual meeting, a petition may be filed with the school district clerk, requesting that the annual meeting consider a special subject. Any special subject must be within the power of the annual meeting.
Because electors have this means of bringing special subjects to the annual meeting, I recommend you do not permit an elector to attempt to raise a new subject during the meeting (if they have not filed a petition).
ADVISORY (OR UNAUTHORIZED) AGENDA PROVISIONS
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The friendly (but unauthorized) agenda provisions/votes.
Many school districts allow matters to be raised or even voted on at the annual meeting that are not within the power of the meeting due to public interest, custom, or other reason.
If the board deliberately includes such items on the agenda but does not want to close off discussion or voting (even though the items are not within the power of the meeting), consider labeling these items as “Advisory.”
The agenda can explain in a footnote that the board values community input and includes these items for this reason; however, they are advisory and not binding on the board because they are not within the power of the annual meeting. Accordingly, the board still has the authority/responsibility to address the matter.
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The perhaps not as friendly (and still unauthorized) agenda provisions/votes.
Sometimes the electors raise matters on their own that are not within the powers of the annual meeting. Review your district’s legal position on the so-called annual meeting “agenda.” Your position will drive other decisions that you make about or at the annual meeting.
Wis. Stat. 120.09 states:
120.09 Consideration of special subject. If, in a common or union high school district at least 60 days prior to the annual meeting, a petition is filed with the school district clerk signed by 100 electors requesting that the annual meeting consider a special subject or item of business which is a proper subject or item for consideration at the annual meeting, the school district clerk shall incorporate a statement of the subject or item in the notice of the annual meeting. The school district clerk shall prepare the proper ballot to permit voting on the subject or item at the annual meeting. If the petition includes a subject beyond the power of the annual meeting, the school district clerk shall reject that part of the petition which contains such subject and notify the proper person within 20 days of the school district clerk's receipt of the petition. The petition shall designate a person or a representative of an organization to be notified in case of its rejection.
Reasonable persons do disagree about whether an elector can raise motions from the floor without following this process and still insist that the vote taken will be binding (although all agree that the subject still must be within the powers of an annual meeting).
Decide what your position is and act accordingly:
- Prepare a ballot to permit voting on the petitioned subject as the statute requires even if you aren’t using ballots for your other motions.
- Be prepared to rule that matters raised from the floor that did not follow this process are out of order.
- Consider voting “provisionally” on matters raised from the floor if there is a dispute about whether it is within the power of the meeting or if it was not presented pursuant to the petition in the statute.
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The meaning of “authorize.”
The annual meeting statute often states that the meeting has the power to “authorize” the school board to do something. Remember that, in general, the power to authorize the board to do something does not include the power to then dictate the details of the transactions authorized.
Make sure you know your position and that your Chair and Parliamentarian follow it. The Chair can encourage electors to frame their motions in terms of “authoriz(ing)” the board to take the action referenced in the statute.
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Identify, mark, and seal challenged ballots.
A person’s status as an elector and an elector’s right to vote are addressed through the statutory provision requiring an oath be taken by the individual claiming to be a resident and proper elector to permit them to vote at the annual meeting.
The district can and should mark the challenged ballot, because the voting procedure may allow the district to determine that the vote cast in the ballot would/would not affect the outcome of the vote on the motion.
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Have a Halloween to remember!
Wis. Stat. 120.08(1)(a) states that, “no annual meeting may be held before May 15 or after October 31.”
Costume party anyone?
Next up in our series, we continue our discussion on school district governance, with a focus on employee handbooks.
Until then, we hope you find these other articles useful: