After nearly 45 minutes and several motions that never came to votes, the Lewis-Palmer District 38 School District Board of Education put in place a controversial new policy that will likely come before the board again for still more changes.
One provision also violates Colorado’s Open Meetings Law, something board President Mark Pfoff said he would take a closer look at after being questioned about it by Complete Colorado.
Policy BAA-R, Process for Addressing Board Member Violations, was up for second reading at the board’s March 15th meeting, but was met with harsh criticism from at least two board members. A third board member sided with the pair, agreeing to remove two paragraphs that many claim violated board members’ right to free speech and hindered their ability to do their jobs.
The policy is designed to keep the board from going into chaos if a member were to break protocol and violate board policies, said Pfoff.
The two paragraphs removed read, “Board members shall withhold judgment on issues until presented to their entire board for action, in a public meeting” and “Board members shall respect the legitimacy and authority of the board as a whole regardless of personal opinion, making every reasonable effort to promote the positive image of the district as well as the board as a whole.”
Pfoff said the paragraphs just encouraged board members to keep an open mind.
“It does not preclude anybody making any statements about opinions or concerns, Pfoff said. “Or making statements saying, ‘I have a problem with this.’ I think it’s just kind of a generic statement saying we will withhold judgement as a board until we’ve had a chance to talk about it in a public meeting.”
But board members Sarah Sampayo and Matthew Clawson did not agree.
“It makes sense that we have a code of conduct—we ask the same of our teachers, students, coaches and whoever works with kids … but [this language] seems to hamper open and honest communication … how it’s worded could discourage frank communication.”
The discussion caused its own chaos, with board members not knowing what they were voting on—there were several motions and amendments on the table at the same time—or what appropriate protocol was under Robert’s Rules of Order.
Sampayo said she had more than 30 people look at the policy and only one was OK with it.
She said response to the policy included comments that it was:
- “A chilling effect on free speech,”
- “Silenced dissent,”
- “A waste of resources because of a requirement for board members to invest their time and use attorney consultation as part of the process,”
- “Encourages loyalty to the board as a priority over the community voters and kids,”
- “An improper direction of the boards energies to have board members policing one another.”
“Policing board members is a matter for the voters because we are accountable to them not to other board peers,” Sampayo said. “It takes our board focus off the kids and almost continues the political campaign situation. We don’t want that to be the direction that were going.”
The board passed the policy without the two paragraphs, but Pfoff and board member Sherri Hawkins asked staff to work with Clawson and bring back a new version of the two paragraphs to its next meeting.
One other provision of the policy also needs to be further examined. The policy reads that if certain other attempts to curtail the action of a board member don’t work, then “the Board will seek legal advice in closed session and then may make a subsequent determination, by vote, as to whether the Board member’s actions were consistent with Board policy.”
However, that provision is in violation of Colorado’s Open Meetings Law, said Colorado Freedom of Information Coalition executive Director Jeffrey A. Roberts.
“I don’t see anything in the statute about school board meetings that is different from what is in the Open Meetings Law,” Roberts said.
According to the law on executive sessions for personnel matters:
“Personnel matters except if the employee who is the subject of the session has requested an open meeting, or if the personnel matter involves more than one employee, all of the employees have requested an open meeting. … The provisions of subparagraph (I) of this paragraph (f) shall not apply to discussions concerning any member of the local public body, any elected official, or the appointment of a person to fill the office of a member of the local public body or an elected official or to discussions of personnel policies that do not require the discussion of matters personal to particular employees.”
When contacted by Complete Colorado, Pfoff said he would look into the law.
“I will pass on your concerns about executive session; if there is an issue I’m sure we can resolve it,” he said by email.
When asked why the policy was brought forth, Pfoff pointed out that he did not vote for the version as passed.
“I support having a policy in place to ensure all board members are treated fairly and equally,” Pfoff said. “We have been working on board policies, to include board member conduct for almost a year. This specific policy is to ensure all board members are treated the same in case of a violation. Without this policy there would be no guidelines to follow which might lead to inequitable treatment of individual board members. This policy protects all board members and each individual board member.”
Though Pfoff did not vote for the version of the policy that passed, he moved to adopt the original version that included the controversial paragraphs and the open meetings violation.
Superintendent Karen Brofft was visibly upset about the discussion and changes to the policy, laying back in her chair and spinning around aimlessly. At one point she suggested the board scrap all motions and start over
“I feel like a ping pong ball,” she said. “Either you can trust us and the legal advice we’re getting, or we can keep bringing it back to you and you guys can write the policy and give it to us and we’ll put it in action.”
The board will look at additional language to the policy at its next meeting, which is scheduled for April 21.