001good evening I'd like to call the special meeting of the governing board study session to order at 7 106 p.m. please let the record reflect that all board members are in attendance do I have a motion to adopt the agenda so moved second thank you I have a motion and a second all those in favor please say I I I I any opposed please say nay hearing none the motion passes unanimously we will um have a presentation on Bo board member roles responsibilities and legal compliance um based on uh board members requests at a board meeting in September we have U added this meeting to our schedule I'd like to um welcome Denise L Brit and Rob um haos attorneys for the district who will be doing a presentation that is about um 40 minutes
002during the presentation we are going to let them finish their entire presentation and then after that um we will allow board members uh questions that will we'll give each board member about six minutes to have their uh questions so that we have time for wrap up at the end so with no please proceed I'm not sure which one of you is starting okay Mr HZ thank you so much thank you for the opportunity to be here tonight president O'Brien members of the board Dr Finch um and look forward to sharing some information with you that will hopefully be move forward just by way of disclaimer uh we are not going to be giving the board specific legal advice on pending matters tonight that would be uh covered by the attorney client privilege um and so
003we're going to be giving more general information legal as we go forward thank you and I just didn't remind our board members that you actually have a packet um that has their presentation in front of you so that you can take notes and write questions as we go just um so you can remember what specific slides maybe they're attached to it apologize thank you Mr House thank you president O'Brien and um along those lines um I will not be reading my presentation to you I assume you'll look at it and and have had a chance to familiarize with yourself with it I'll be happy to emphasize a few things that I think are important and answer questions at the end so we'll start off with the gold standard here of uh you know board member
004roles and responsibilities which is all for one one for all the more we are together uh on things I think that's in everyone's interest your policy uh you have a policy bbaa that talks about board member Authority and responsibilities and it emphasizes that individual board members exercise authority over District Affairs only by way of votes taken at a duly authorized meeting and we've cited to an attorney general opinion that emphasizes that you as an individual have no power or right different from any other citizen not withstanding the statutory powers that you are able to participate in exercising when you part of the board um the staff will certainly give you difference more probably more so than the standard Joe off the street that wants information from you and they respect your uh role but as
005an individual board member you have no power right different from any other um all of your board power lies in your action as a public body you are one-third of the way to getting your way on whatever comes before the board um and it it reminds me of the saying that if you want to go fast go alone but if you want to go far go together um so as you think about uh your individual um efforts on behalf of Dear Valley or on behalf of uh the interests that uh that you're that you support um I think realizing that all of your powers uh lie public body you should ask yourself do I need to speak about this do I need to write about this as an individual that has not been tasked with
006that by the board if so you should in my view uh issue a disclaimer to people that are going to be uh reading or listening to what you have to say um that you are not acting on behalf of Deer Valley Unified School District this is your personal opinion and uh the district may may think otherwise or do otherwise some scenarios where uh uh individual action arises frequently is when you're being interviewed by the Press um when a constituent wants to request that you take particular action or you make promises or commitments to uh constituents that you individually are not able to make um when you go to visit a school uh again you as an individual board member unless you've been tasked by the board to do that you are in the same capacity
007as anybody else visiting that school and you're obligated to check in let people know what you're doing you may need to check in with the uh superintendence office ahead of time as well dealing with vendors again you have no authority to commit bind you know uh on behalf of the board and uh social media is becoming an increasing point of concern in this area and Denise will cover that in more detail but again I think it's important that if you're doing if you decide I need to speak about this I need to write about this um as an individual that you should issue a disclaimer that uh the opinions are your own you are not acting on behalf of of the school district Arizona's Education Code uh sets out a school board's Authority you are
008as a political subdivision you're a creation of the state you only have the authority granted to you by the state and there's two main statutes that deal with that one is 15341 that provides a mandatory list of things that governing boards must do and 15342 which is a permissive list of things that you may do if you choose to do so um your policy BBA talks about uh board powers and responsibilities and the area that I want to really try to emphasize on this is that uh you are to accept the responsibility for confidentiality in appropriate matters especially those dealing with Personnel student issues and legal matters uh the divulging of privileged information that could cost the District money support or public confidence that is not a decision that your policies have decided that you
009loan can make um for example uh the attorney client privilege that belongs to the board as a whole and it is not up to one individual board member to decide if they are going to wave the privilege you'll get advice on a whole variety of things during your time on the board and that attorney client privilege exists for a lot of very good reasons um and it is the privilege it is the board's privilege to wave you can wave it if you think you should um but an individual board member does not have the authority to do that this policy BBA talking about board powers and responsibilities also again these are the rules that you have set for yourselves um indicates that you will refer comp complaints to the proper School authorities and refrain from
010Individual Council and action and you may ask yourself well why why why shouldn't I get more involved in a matter investigating looking into a matter that comes to my attention um you know I'm really interested in this point and I I may not have full confidence in in the person that I think is going to be following up on this why should you uh defer to this policy and refer complaints to proper School authorities again you as an individual have no authority to act uh on behalf of the board and many of these things may come back to the board for a vote on on a later time for example a Personnel item whether somebody should be fired whether a student should be expelled whether the district should settle litigation all of those matters will
011come to you in due time uh when those matters come to you such as when you're to decide should we fire somebody should we expel somebody and those sorts of things you act in what's called a quasi judicial role and the person that is whose fate you are deciding that evening has a legal expectation that you would be fair impartial and open-minded and to the extent you've engaged in an independent investigation um the extent that you've uh not referred this to uh the proper schools School Authority ities uh that person could question your open-mindedness your impartiality whether you've prejudged these facts and already made your mind up or made your mind up on information that's not available to the entire board or that that person has has not had a chance to challenge um and
012so you may jeopardize your ability to vote if you get too involved in these sorts of things and so referring complaints uh is is an it it there are a lot of reasons why you want to do that you will get to vote on things ultimately and if you'll let the process run its course and be patient with that then you'll you will ultimately have the final say if you get too involved in it uh you may lose that opportunity and you may comp compromise the district's uh interest as it goes forward you also have a board policy that talks about ethics U again the rules that you've set for yourselves on these things and your decisions should be made only after discussion at publicly held board meetings um this ethics policy also says that
013you will take no private action that will compromise the board or Administration and respect the confidentiality of information that's privileged under applicable law so what what does that how you know how does this how do we get crosswise or off course on some of these things sometimes uh people will offer their opinions on legal matters uh they will offer their opinions on legal liability and if you as an individual board member are saying I think the district is liable because of this or I think the district was negligent because of that uh well one uh in a courtroom you're not qualified to make that decision uh for starters and and for two uh that may be inconsistent with the position the district actually needs to take wants to take and is supported in taking by
014the in by the full amount of information that would be revealed during the course of an investigation so offering your legal opinion offering your thoughts on legal liability on matters whether somebody has complied with the law whether somebody's defamed this person or that person whether somebody's breached to contract you know whatever it may be uh again the rules the ethical rules you have set for yourselves indicates that you should refrain from that and with good reason um board policy BHD board Communications with the public um you have tasked the superintendent uh with the role of imparting this information communicating with the public uh and the more voices there are on a particular matter the more risk there is that those voices will be inconsistent incompatible with one another if your superintendent not doing what you
015think he should be doing you can evaluate him and hold him accountable but your your policy is that he will communicate uh with the public and to the extent that you do that uh again as an individual uh unauthorized by the rest of the board um you undermine his authority you undermine your administration's Authority uh to do what you've hired them to do and to do what you've committed you would you want them to do um the board superintendent relationship also addressed by policy and the super uset policy these are your rules if you want to change them have at it um but when once you make the rules I think people fairly expect you to follow them rules for me but not for thee we've all heard that and uh you know that that's
016that's a challenging scenario and so you can make your own rules but once you do you should follow your rules because when you make a rule and don't follow it then you're you're just at you're exposed on a person saying well you know that's not the way it was supposed to go um so you you make your policies the superintendent is the chief executive off he is uh he enforces the policies and you get to evaluate the superintendent as set out in your board policy um uh you as an individual board member are not a backseat driver as to how the administration is doing its operations uh again your voice is when you evaluate the superintendent you can do that as often as you want uh by policy and by his contract and you can
017communicate with him as often as you want um but again that's the rules you've set for yourself and you may say why is that so and uh the Attorney General's opinion on this in this quoting from a a a long-standing case is that um the law contemplates that members of the school board are interested in education interested in children but may not have all the professional training and expertise of the staff that you hire I know some of you do have that specialized training and expertise but still um you don't have the full-time effort to devote to this as the people that you hire do and so um the that is why the Arizona recognizes that uh you uh the members of the board supervise the professional work U but that the superintendent teachers principles
018have exclusive control over those matters and I'll turn the time over to Denise thank you all okay so I'm going to talk a little bit about board member accountability and then uh move into board member use of social media and email um so kind of tagging along uh to what uh Rob just uh finished sharing with you board members as he noted um are certainly expected to follow your own board policies and board members are expected to adhere to all applicable laws uh and governing as I said governing board policies when you accept your office and um I think board members really do strive to do that it can be complicated sometimes laws are complex um and you have a lot of policies to get to know but that is the general expectation and commitment
019that board members make when they um take the r of office and start serving on the board there are a couple of different policies in addition to the ones that Rob mentioned that are relevant to this topic um in terms of the board president's responsibilities um for the orderly conduct of meetings meetings are again where you have all your power and your Authority um and in the case of the board president's role of board meetings that uh you have a policy that basically provides the board president with the ability and the responsibility to Pride over those meetings so in your policies it provides that the board president shall preside over all meetings and conduct and conduct meetings in accordance with Arizona law District policies um the board president is charged with encouraging and maintaining orderly
020and Democratic participation conducting again an orderly meeting that term orderly comes up a couple different times in the policy and then also uh the ability and authority to rule on the appropriateness of the subject being con presented and to that point you of course have board policies that also talk about how you generate your agendas and then we have open meeting laws that dictate that uh you should only be discussing matters that are on your agenda and so part of that responsibility is to make sure that as the meeting progresses uh board members or others who are uh invited to speak uh during the meeting only speak to those matters that are on the agenda um you know and even under call to the public again um special rules concerning that under call to the
021public board members may be permitted uh to speak to matters that are not specifically on the agenda but that's why the open meeting law also indicates to or directs you to have very limited responses in the case of call to the public because of the need to ensure that the public generally knows what topics are going to be discussed and considered um at any given board meeting regulation of board member misconduct by the board um certainly in the last year or two we're living in some pretty challenging times uh generally Across the Nation and certainly in Arizona and sometimes uh members of the public are unhappy with something that occurs uh Visa a particular board member and sometimes what happens is a Community member will communicate to the administration or to other board members I
022I'm not happy with the conduct of that board member you need to do something we want you to censure that board member we want you to you know remove that board member and um it happens and the what the public doesn't understand um often times is that in Arizona board members do not have the ability to investigate or discipline or censure each other okay there may be times third parties need or charged with investigating but within a board um there's no statutory authority to do that and in this Barry b Foster case that's now been around for some time the Arizona court of appeals made it clear that board members cannot uh centure or discipline one another for improper conduct so what does happen if there is um an allegation of board member misconduct well
023uh there may be as I said third parties that can come to bear on the issue um who may impose consequences if there's uh established proven misconduct or who may investigate in some cases alleged misconduct we have the Arizona attorney general for example that can investigate allegations of open meeting law violations um the courts may come into play and certainly the qualified electors of any district has that statutory ability to seek a recall election of a board member if they're not pleased by that board member's conduct or actions and then kind of in an indirect way and Rob um you know talked brief super briefly but about kind of uh I think or I'm sorry you will be talking more later about insurance coverage and I'll touch on it a little bit in my next
024portion of the presentation but in an indirect way um your insurance provider may also have the ability to um weigh in when a board member kind of uh acts beyond the scope of their Authority uh to the detriment of defense of the school district by withholding coverage of a particular board member and I think we're both going to be talking a little bit more about that so um I'm going to move on to board member use of social media and email and the the even even though I think the most of my slides are focused on social media many of the concepts are also going to apply to board member use of email so okay so the first the first thought is and the way I tried to frame this portion of the agenda is
025if I were a board member and I wanted to use social media um because I felt it was a good way to communicate with my constituents or the public and certainly there are good reasons why board members may want to use social media I would ask myself questions as I was thinking about posting to make sure that I never kind of cross the line from appropriate use of of social media or email um into improper or dangerous or you know potentially um just risky um uses of social media so the first thing that aard member may want to ask before posting is is there a potential for my social media posting or my email communication to constitute an actual meeting a board meeting under AR 3843 So to that we have to look at the
026definition of meeting under the open meeting law and uh from the statute we know that a meeting u means either a gathering in person which we all like tonight you're all here or through technological devices of a quum of the board at which the board at which the members discuss or propose or take legal action including any deliberations by a quorum with respect to that action and then it goes on in the law to further Define what this meeting could look like so a meeting can include a one-way electronic communication by one board member to a quum of the board that proposes legal action this is this is probably the most risky aspect of this because if if you all if if and I'm not going to say you if board members are actually looking
027at one another's social media postings regularly so if at any time for any board if there's a quorum of the board who's regularly looking you know at each other's um social media and one of those board members is actually using the Social Media communication to propose legal action that that you know and the other two board members um are looking at it that that places everybody at a risk situation um the second and these are all ores as I walk through them but or and this is all you know coming from the statute um a meeting can be an exchange of electronic communications among a quum of board members that again involve discussion deliberation or The Taking of legal action by the board concerning a matter likely to come before the board um in this
028AG opinion now this actually I think predated the update to the statute that I just talked about um but the noted board members can send information to the board members but there can be no discussion concerning the information until and unless it then becomes the topic of a public meeting and there's a number AG opinions at this point um that talk about this technological use of uh communication among board members and there are some good examples to be had in the in those ex um AG opinions um and another aspect of use of social media and open meeting law in my view has to do with executive session discussion or minutes because um Ford members uh you may be having you know extensive executive session discussion but then you know you may be able to
029but then there may also be the topic uh being discussed in the open meeting and sometimes you may not recall did something happened did the discussion happen in the executive session or the open meeting and so the danger here is that you know we know that the open meeting law requires that discussion occurring in the executive session and the minutes of any of that discussion be kept confidential but what has happened on occasion is that a board member in their use of social media gets confused or forgets that the discussion that they're posting about wasn't in the public meeting and there's an inadvertent disclosure of executive session content and then um you know that's a technical violation of the open meeting law well it's an actual U violation of the open meeting law that could
030create uh problems so I mean just to put a pin on point I guess any any use of social media that refers to or replace executive session discussion or VI uh is a violation of the open meeting law and you know some boards I I don't know how many especially because you all use and I I mean not just you you here but generically board members these these days are often using their laptops or um for content to be you know discussed during um an executive session but there are some some governing boards in the state that actually prohibit board members from having tablets or cell phones in executive sessions just to ensure that confidentiality so another aspect of use of social media has to do with copyright law so again if I were a
031board member and I was contemplating using my social media um to post content as a as a board member speaking to my constituents uh the public uh or the public I would want to ask myself does the posting contain any copyrighted materials including photographs or articles um did the board member and this really applies not just to board members but all of us who use you know social media uh did the board member obtain permission from the cop opyright holder before posting the content or does the posting violate the copyright owner's reprint or use guidelines there's just this sense I think in many people that if it's you find it on the Internet it's open for use and there the copyright doesn't apply but that's just not true so you will always want to make
032sure that if you're going to be reprinting reposting that's something you think about another um aspect of of social media use is student privacy so we'd want to think about does this posting contain any F protected information family right educational rights and privacy act that you're familiar with that governs um parent and and and eligible student access to the records but also provides a lot of protections and confidentiality about those records uh unless consent has been given for the release of that personally identifiable information um or unless some statutory exception under fur applies so we want to make sure that there's not um a violation of furpa by posting information that you know because you had access to a student's educational records um or that um the third bullet here is about personal information the
033family expects to remain privacy so even if you um are posting something that's not an educational record you may also come into information as a board member that is being provided to you um but should still be confidential outside of furpa and an example of this that occurred a number of years ago is that the board members became aware of a student um who had been in a serious accident and the nature of the injuries and you know just details about the accident and the condition of the student and and just very um you know they were the board members trying to be kind and and thoughtful in a way and but shared out what had happened and kind of like you know we're so sorry to hear this and we wish you the best
034and you know just trying to be kind but the family became extremely upset they did not authorize the release of information even if it wasn't technically fur related uh information it was not expected to be shared public publicly so just having that awareness um when you post is important because that could damage relationships obviously and and lead to distrust um and then defamation social media and defamation so if if we're going to post something we want to make sure you know that we have done our research and make sure that anything we're posting is factually accurate um so you would be thinking of the question does the posting contain a defamatory statement what is a defamatory statement it's when one publishes to a third person a false statement either by insinuation or explicit statement of
035or concerning another person that tends to bring that person into disre disrepute or contempt or ridicule okay next um consideration on posting is does the posting constitute breach of contract um how might this come into play well uh although we don't see it all too often there may be for example Severance agreements that contain a confidentiality provision that says the district won't share information unless required by law you know to do so something like that um we so we so it could be a breach of a severance agreement to share out information um insurance contract I think Rob you're going to maybe talk a little bit more about that and I'm I think going to talk a little bit more about that but it's uh essentially we've got cooperation Clauses in Insurance in your insurance
036contract and all of us probably in our personal and automobile all kinds of insurances that says hey part of our agreement with you is that you're not going to um make it more difficult for us to defend you should there be some kind of litigation and um so uh depending on what you post you did you already kind of did talk to this a little little bit Rob which is to say you know if you were to announce um publicly in social media whatever that hey we've known about that hole in the ground for months and why didn't our grounds keeper do that you know and then after someone has fallen in the hole um and injured themselves that could be a problem um and then there may be other kinds of contracts again that
037may come into bear so we want to make sure that before we post things we are not inadvertently um violating any of the district's contracts and Rob you also talked a little bit about this um due process protections um when we're posting on social media about Personnel matters or student matters grievance hearings that may come before you you may as Rob said compromise your ability to act when it's the most important for you to act which is as a board in that J kind of judicial capacity when you're acting as the judge and jury over a matter um we want to think about would a posting that I make about this matter impact my ability to discharge my duties in an evidentiary hearing and so we know from your board policies that certain grievances may
038come to you ultimately if the grievant isn't satisfied at the lower levels um for your employee discipline uh hearings you know only the board can terminate an employee that has an entitlement to um a to a hearing right due process and then of course the board is the only entity that can expel a student and uh if a student is long-term suspended they may appeal to the board so those are examples of where you have such important responsibility and you don't want to compromise that by as as Rob noted um posting in a way that will cause people to believe that you can't be fair and impartial and whether you then feel you have to recuse yourself or you're asked by an attorney uh representing the employee or in some cases the administration you may
039be asked to accuse yourself um and this this kind of follows along with that that there may be a perception even if it's not true or a reality that the board members prejudge the matter and won't be fair and impartial and and set you know it could certainly be used to challenge the validity of the board's decision if the board member does not accuse him or herself and then public records law uh social media uh could constitute a public record in some circumstances so we again have to look at what the law says about the definition of a public record and a public record can include those uh Records reasonably necessary and appropriate to maintain an accurate knowledge of your board members official activities and publicly funded activities made in pursuance of a duty to
040disseminate information to the public made to serve as a memorial of official transactions required by law to be kept or other records and that term can be construed broadly um the first bullet is the one that may be more likely to come into bear when you're post indidual you know um as in Your Capacity meaning you are doing it because you're a board member and you're putting it out there as a board member talking about board member business and the determination of whether uh something is a public uh record or not is not is is I'm sorry is based on the content of what's posted not the format or location and so what does that mean um it means that uh use of a personal iPad or a personal phone that's not definitive as to
041whether or not content on the personal phone or the iPad uh could be accessed um or that that items on those personal items can be accessed or must be disclosed it's really does the content arise to the level of or the definition of a of a public record and so that means that in there are some cases where where board members would have to actually maintain um their social media content text those kinds of things uh if they meet the definition of a public record okay I'm going to turn over to Rob again very it's a very interesting time to be a board member so thank you for your service for starters again uh but it it you know it's it's just an emotionally charged time to be on a school board and so we
042hope this is helpful to you as you undertake your uh duties uh I know you've recently had training on open meeting law from asba so I'm I'm going to kind of skip a couple of these slides and I I know you're all A+ students and you'll re on your own outside of class um but a couple of things I want to point out um is the and emphasize what Denise uh said great great advice to be mindful of Serial discussions uh whether that's an email chain you know I talk to you you talk to me I get your text I forward it on you don't know when you forward it that recipient doesn't know how many other people have been involved in the discussion there's these serial Communications have high risk for open meeting law
043uh problems um and again if you take an action in violation of the open meeting law the action is null and void it's as if it never happened and you have there's stringent things you have to go back and do to try and fix fix that um these serial discussions whether it's by phone in person email text all of that counts and it doesn't matter whether you're using a district provided uh communication device or address or a personal communication device or address if it goes to board business um it would be considered uh fair game when reviewing the open meeting law all right so uh despite your best efforts not everybody's happy and the people that are unhappy are more likely go up than the people that are happy at your meetings so if you
044feel you've been challenged or criticized unfairly after a call to the public what can you do because you're constrained by your agenda people need to know what you intend to talk about what you intend to decide that is why you have an agenda so that I can think yeah I'm going to go to that I want to hear that or I've got better things to do tonight I'm going to you know I'll I'll pass on that and so call to the public because no one knows what's going to be said uh you are limited in how you can respond uh but if somebody you can respond to criticism made by those who have addressed the public body you don't have to just say thank you sir may I have another and wait for the next
045person you can respond to criticism that's fair game um you can ask staff to review a um or ask that a matter be put on a future agenda if somebody raises an important point I don't know pick something that could theoretically come before you critical race Theory um vaccines masks you know if some something like that you can ask staff to review the matter or ask that it be placed on a personal agenda but even though you think it is the most interesting topic in the world that comes up in call the public you are limit Lim mited to those three responses okay um and you can't get around it by asking Dr Finch to do something you're unable to do or Sheila because she's so capable and efficient and you know helpful you can't
046have her do something you're unable to do it doesn't work that way and you would be responsible for that executive sessions uh are limited to items set out by Statute um and when you go into executive session for one reason you need to stay on topic okay how do you get for example you go in to talk about a Personnel matter and you get to the end of the Personnel matter and then then you there's a tendency to want to talk about more Global issues uh you know well did that happen somewhere else or this is a routin this is a recurring problem what are we going to do about it you know you you kind of mushroom out the discussion and so when you go into executive session stay on topic okay I want
047to talk about insurance coverage um ultimately the school district is liable for almost all School actions you uh you know you you ran to do great things and we all applaud you and appreciate you for that when the district is sued you're going to be sued okay uh that's uh the good with the bad on that um you will be indemnified in many instances by District insurance coverage meaning you know you don't have to call up your homeowners policy and say hey uh I got I got served at these papers what do I do about that or U you know call your lawyer and say you know I'm in trouble the the district will indemnify you in many instances through its insurance coverage and state statute provides immunity to you for certain actions you are
048immune from personal liability for actions that you take in the scope of your board member Authority and remember we talked about that earlier what scope is uh if you're acting on your own you're on your own um if the authority is acted upon in good faith okay you all think you would have acted in good faith and Denise and I would absolutely agree with you on that point but other people may not they may think you acted with a bad motive and that's what horse that's then we have a horse race that's what court cases are all about somebody saying you acted in bad faith you say I acted in good faith and the judge and jury uh need to decide um so just your state of mind your subjective view of whether you are
049acting in good faith is not the determining Factor on that um and was this during a duly constituted regular special meetings so um those three categories you should check to make sure you're can check those three boxes when you're talking about statutory immunity for federal claims there's also some immunity from federal claims as well and um basically tracks same same areas of State okay there are four are four specific areas of potential personal liability one is open meeting law violations you can be person responsible for that two is conflict of interest issues um and I'm I'm not going to spend a lot of time on that uh if there's questions be happy to address that one the third area is using School resources to influence the outcome of an election if you do that you
050are exposed to personal liability and this statutory immunity would would not extend that far and your insurance coverage as we'll talk talk about may not extend that far the the the fourth area of potential personal liability is matters outside statutory immunity and excluded by Insurance okay um you spend a lot of money on insurance um and you are well insured by a very good insurance trust um and they they actively defend you in a whole host of variety of matters and they have very capable Council that are there to assist you and so you you can rest comfortable in a lot of ways on that but um insurance doesn't cover everything and the insurance coverage contract contains a cooperation Clause meaning you have to cooperate with your insurance company if you're going to expect them
051to defend you and ultimately settle something in the event things weren't done right or it makes economic sense to settle it you have to cooperate and if you fail to cooperate you're jeopardizing the insurance C coverage jeopardizing your uh what their obligations to you um you could violate that cooperation Clause by making unauthorized comments that may negatively impact the district's defense and litigation I think we're liable gosh you know we messed up here we're negligent there we breached that contract those kinds of things that are not your ultimate decision to make and you don't have the expertise to make it um Can jeopardize uh you and others so the risk of unauthorized individual board member action when you're acting as an individual as opposed to acting with your fellow board members you may not be
052afforded the coverage that the carrier uh if the carrier suit as a result of unauthorized activities and this is not to you know make you unduly scared or nervous it's to educate you and to remind you because you're involved in a lot of emotional situations a lot of critical things and and this is an interesting time um and so we want to try to highlight this so um some other things about insurance the carrier has the right to make inspections at any time that includes your papers your documents that you've generated in your role as board member um that this inspection right is very extensive if it needs to be um they can investigate any event that may involve the insurance uh your actions who you talked with what you said you know what's been
053going on all that sort of thing and you're obligated to cooperate with the carrier in its investigation settlement or defense of a claim or you run the risk of not having that coverage they need to be able to count on your cooperation to set their rates and all that sort of thing common exclusions from insurance policies plaintiff's attorneys fees in Arizona often times the prevailing plaintiff can can recover reasonable attorneys fees from the defendant that Award of plaintiff's attorneys fees is generally excluded from an insurance policy um now the district May pick that tab up on your behalf it may not depends on the circuit but plaintiff's Insurance plaintiff's attorney fees are commonly excluded breach of contract claims are also commonly excluded from insurance coverage insurance coverage typically uh covers personal injury by bily injury
054those sorts of things but breach of contract claims are excluded both as to coverage providing a defense and as to damages um intentional acts also typically excluded from insurance policies uh what is an intentional act discrimination for example is oftentimes viewed as an intentional act um and anything with punitive damages would involve intent um punitive damages are also commonly excluded from insurance coverage and under the federal civil rights statutes which is the most likely statute that you would be named as a defendant in uh violation of due process violation of free speech religious exercises those sorts of things um if you are individually named and found individually liable and and liable for punitive damages uh those would typically be excluded from your insurance policy and so you have skin in the game uh on these
055topics and if there's any questions about what insurance covers or doesn't cover we can get you those answers and we will get you those answers so that you're as secure in doing what you're secure in your office as we can help you to be uh but even though we buy insurance and you've bought a lot of it it doesn't cover everything or everybody in every inst also indemnification meaning you've agreed to pay somebody else's tab that's basically what indemnification is you've agreed by contract to defend indemnify and hold harmless the superintendent from legal claims brought against the superintendent in his individual or official capacity as agent and employee of the board while acting within the course and scope of his employment all right so um to say that the superintendent screwed up in your opinion
056um you may feel good about saying that uh and if that's true uh you've already agreed to indemnify him on those sorts of things and so uh again another reason to uh you can ask any question you want about any legal issue you want but it should be done in executive session and done as a group so that everybody gets the same information at the same time and you can fully understand your risks moving forward um with that um we'll be happy to answer any questions thank you so much both Mrs paperman um and we're we're going to use a timer because we are we have a hard stop at 8:30 um so I'm gonna are you taking care of that Mrs Taylor five let's do five minutes because we went a little long okay
057go go ahead well my question uh well thank you for the information this is great information as a board member my question is I know social media is a you know like a big one uh as a board member uh when we have sessions uh do we uh post information of an individual board member or individual person within the district you know does that you know does that go out to the community I'm sorry I I couldn't quite get the beginning of the question um when you're using social media yeah can I post an individual you know like on boards or uh individuals from districts or uh you know if can I say something about the individual and post information on of my opinions of them uh so if you're asking if you can use
058your social media to give to publicly post your opinion about a school district employee or a board members or a board member yeah uh yes you can however again you just always want to bear in mind all the cost points points right that that I I made so you want to make sure it's truthful information uh but you want to remember your board role and responsibilities so is that going to be in the best interest of the district I mean think back to the board policies that Rob reviewed and then all the questions that you wouldd want to ask yourself right about uh the risks potential liabilities of doing so um so if you're going to say something negative and um perhaps damaging to that person's employment or the their reputation the community or the
059trust and confidence that families have in their teacher or their administrator I mean the answer of can you is yes should you is very different right and what risks and liabilities you're creating and what potential harm are you doing to the district to your students generally those kind of considerations and I'll picky back off that you know the district has an active social media profile and if you if you could just you one thing you could do is talk to whoever runs the Instagram account or whatever and say hey I think you know so and so did a great job can you maybe think about you know giving them an out out a boy out a girl kind of a thing so you can use the district social media team as well and by the
060way on a positive note one of the best things the board members can do with the use of their social media is to link to all the positive I mean you're District's website right or social media presence is awesome and if one of your goals is again to promote the district to promote its programs to celebrate its students to celebrate its activities to promote the good things the board has done one really easy very good way to do that is just use your platform to share out ple check out the district's Facebook check out the district's website I mean that's a wonderful way way to to use your social media okay thank you it's that all you had Mrs paperman that's it okay Mrs fiser Mrs Reed um one thing that wasn't covered um and
061and maybe you can can write something up for us later was um hostile work environment claims as far as um how that might affect how that might affect the board I don't know if there's anything that you want to say about it now or if you just want to kind of file it away go I I can address that again we're not here to talk about specific situations and give you legal advice on specific matters but a hostile work environment claim uh the law prohibits unlawfully hostile work environments and to be unlawful it has the the hostility has to be linked to a protected characteristic age race sex religion disability those sorts of things if the hostility is due to one of those then that would expose the employer to some liability if it's just
062I'm not happy working here or this is a difficult working relationship because it's a personality conflict or you know this person uh cheers for Green Bay and I cheer for the Cardinals some you know something like that um where it's not linked to one of those protected characteristics then you would not have an unlawful hostile environment um if it is linked to one of those uh protected characteristics then the the hostility has to fundamentally alter the terms or conditions of employment does the person make less money did they get demoted uh have they lost out on some opportunities uh those sorts of things uh that would be looked at to gauge whether um the terms and conditions of employment were compromised or violated um is that going is that helpful at all oh sorry and
063maybe just to follow up even if the you know some people do uh experience um what they will call a hostile work environment and it's and it's real it feels hostile so even if there's not a legally cogn a legal claim um we certainly have had experiences of employees who may not be in a protected class um who who are struggling at work because they do feel like like they're not in a supportive environment in fact they feel like they're in a hostile environment and so that can become an employment related issue whether or not there's a a claim that can be brought under you know with the EOC or or in court so I think it's a real issue for people whether or not they can follow up with some kind of legal claim
064because it it will necessarily have to involve your human resources department it's sorting out relationships because again when people feel like they're being treated in a hostile way it can impact their work product it can impact their desire to come to work every day um and so it is an issue that can happen in the workplace um even when maybe there's not a a legal claim attached to it so if the question was asked in the context of social media which I I thought it might be um I think that's again a question to ask is you know even if it's not defamatory for example is it still harmful right uh is it still hurtful is it still damaging to relationships to confidence in an individual who's an employee or you know if a parents
065looking at it and there's a negative post about someone who their child interacts with every day so I think that's if that's the context in which the question was asked then I think it's still a question to ask before one posts right and thank I'll just add a postcript to that too and you're talking about hostile work environment claims some things that some things that matter from a legal point of view you're look asking how pervasive is this meaning how often does it happen how often is this hostility present you know was the person say do they say it every day every time you see them or is it once a month how pervasive how severe and um the more pervasive it is the less be the more severe it is the less often it
066has to happen so you're trying to figure out how pervasive how severe in gauging a hostile War claim and whether the hostility is coming from a supervisor or a co-worker uh the district is more exposed if the hostility is coming from a supervisor as opposed to if it's coming from a coworker thank you Mrs fiser do you have any questions Dr Finch at this time okay so we haven't gone through much more than one or two questions so I would generally prefer to go last because I find it's normally a will hold so that we can have our one say of what you said um and then you can't say anything in response but I'm going to go and just read the questions to you that I have um and you can answer um at
067well uh does the board have protection from hostile environment created from a position of author within the district that's number one number two does the board work for the district or for the public who elected them number three statute has responsibilities of governance um throughout it that the board um is board and board members are supposed to honor um is it prudent for the board or board members to abdicate their responsibilities um and rather serve as cheerleaders for the district um through positive only um and then the final question is um oh heck I just got derailed um the final question is you know iot actually it's just a statement I do appreciate you going over this again you've gone over it for us repeatedly and this is all um direct asba uh interpretation of
068of um statute but if a board member is concerned um our policies are provided to us then presented to us then on consent without in my opinion full discussion is that problematic I didn't get the first question okay I I think the first question was is the board protected from hostile environment from staff and um of course the the Civil Rights title 7 the Civil Rights statutes typically apply in an employment p in an employment setting is there some protection from a board member from a hostile environment probably so uh in some limited situations of course it be very fact fact intensive fact dependent um I think the second question Miss Fischer was does the board work for the district or for the public um and I think the answer to that is you do
069both I mean you you are a public servant but you you have fiduciary obligations to Deer Valley Unified School District you have a sworn oath uh to you've taken on behalf of Deer Valley Unified School District um and so you do have obligations to both uh in my view I didn't catch the third question the fourth one was and Denise can give her you know I'll answer this one then let Denise do what say whatever she'd like but abdicating you you raised an issue of abdicating responsibility uh do you abdicate responsibility and just be a cheerleader uh no no one's expecting everyone to agree on everything all the time no one's expecting uh board members to just sell sunshine and Roses all day every day there will be times when you dis agree there will
070be times when there are differences of opinion it is how you go about expressing that that we're trying to emphasize to the board tonight there are appropriate Avenues to do so there are constraints that you've imposed on yourselves to do so and those are well thought out constraints and reasons uh and uh have been developed through a lot of experience and U with an eye towards helping your students to be there very best so no one is expecting anyone to abdicate responsibility and to just be a cheerleader obviously you do this because you want Deer Valley to succeed and want to promote Deer Valley uh but when there are differences of opinion when you have a a concern you want to raise there are Avenues to do that proper ways to go about doing that's
071what we're I think trying to to help uh uh help remind you of tonight um in my last 41 seconds the um concern I actually have is that we we we've gone over policies that the board should follow and the board should follow it letter by letter and it's applied to the board um when we not don't necessarily have Administration follow policy as well um and when you're on a uh you know there's the old joke about superint the superintendent only has to count to three um that becomes a concern is there an Avenue to address that I think Rob already um shared much first all I wanted to also note that one your board policy does provide that um what there is a board commitment that once the board makes the decision uh a
072quum of the board makes a decision that there is an expectation that is reflected in the board policy that then that decision will be supported even if there was a lot of disagreement in it prior to the vote so I did want to note that but in terms of the um the qu the last question Rob had previously covered the fact that um if there is concern about the conduct of the employees of the district if it's an employee other than the superintendent then the expectation is that the superintendent is responsible for addressing those issues if you're not satisfied with those actions then you have the right to consider that when you're evaluating or considering contract for the superintendent and if the unhappiness is about the superintendent then again as Rob previously noted there's those
073opportunities typically by contract to have regular meetings uh or as needed between the superintendent and the board to discuss those relationships and those concerns there's the evaluation um piece as well as again the the ability to consider future relationships between the superintendent and and the board and the district so that's really the way things are are set out thank you Mrs zway okay have a couple of questions and then maybe a little bit of help on um on how to carry out some strategies so um going to um the social media and copyright laws this is just flight because I go to oh I'm sorry because I do go to uh as many events as I can possibly go to and I do take pictures and I do post them um you know for the
074students so we can see how wonderful they're doing so I'm just asking is there a form I should fill out for that or not and I do not do uh students faces um if if uh it's not been verified that they can't uh be shown yeah that's a really good question so excuse me remember that um fura has a provision that talks about directory information and often times and I think probably in your policy student photographs are um contained within the definition of directory information and so what furus says is that at the beginning of every year the district has a responsibility to send out a notice to all the families to ask them to opt in or out of director information usually they're given two to three weeks to return the form um if
075they you know return the form with the box Mark no I don't want that information being shared including photographs um then it shouldn't be shared and there's good reasons for that sometimes people are protected persons right abuse Etc that they're they fled from I mean there's all kinds of reasons why people may not want their kids posted pictures posted um so before you do post a picture it's really worth checking to make sure that the family hasn't opted out of that um and sometimes you also have even more specific consent forms for videos or photographs for particular events you know it's not a lot of privacy uh interested in kids you know if it's a something that's open to the public kind of like the homecoming right the football game scenario okay so that may
076be quite different um but it's nevertheless probably a good idea to check before you post discernible photos of of students I I yeah I just wanted to verify that so um just in case anybody else yeah it's a great question interested in that so in the staying in the social media and then the defamation so what um happens if or what what do we do um if the uh the degrading or uh um Mis misinformed uh Colonel of Truth uh posts continue and uh so what is board members are are we supposed to do whether they're about us or or our employees what exactly is is what we're supposed to do or is this not the night that you're going to give us that advice um again we'll answer general questions absolutely um so defamation
077is is a personal injury claim so for example if if person a defames employee B employee B has a personal claim because you know they were defamed they're injury that they've been injured uh and they would if they bring a suit and are successful they would get get an award and that award would be theirs because it's a personal claim and so there are some limits on the district's uh pursuing a defamation claim on behalf of an employee because it's a personal claim and you are obligated to use your resources for public means but can you defend employee B from a from a charge yes yes the district could um an individual board member would be unlikely to take that banner up themselves that would be a situation where you would want to you know
078report that concern and have it dealt with that way I would think and certainly one step an individual could take is to notify the individual who has made a statement um that is false that it's false because again in the social media context that you ask the question there may be times that people just don't do the research which that they should have done to determine the truthfulness or falseness of a statement you know or um an action by that other person that they're writing about so um it certainly could be appropriate to inform that individual that is false information please remove it immediately okay and then so going down that line if um it is consistent and it continually consistent continually puts uh The District in um a light um that is by that
079opinion um does that is that where the insurance can say hey you're say it's um something about our special ed Department um you know they they don't do this they don't do that blah blah blah blah blah um or whatever the department is is that something then that um falls under that or I'm just trying to figure that part out well I think defamation is about people not I wouldn't be necessar about a department it would be about a person or people okay so a person in a department okay and again I think you know if we're going to go into any whether it's perhaps theoretical at this point or not I don't know but this may be a topic that's probably better discussed maybe uh we can we can follow up session if it's
080more detailed um no so okay thank you so much Janise and and Rob um Dr Finch did you have you're good so um you can start the time for me because this will be my five minutes thank you um I want to um thank our board members for requesting this session and for our two attorneys uh Who provided the information I we have a board member on here who's uh been serving for less than a year all the way to board member who I believe is in her 13th year uh and everything in between um every time I hear one of these I learn something new or reminded of of something that sometimes is just you don't you don't think about as often as you um might need to sometimes so I I appreciate all
081the information uh that we received I appreciate the good questions from our uh board members and I hope our community will uh take the opportunity to uh watch this um meeting because I think that there's a lot of um information in it that you don't normally uh they don't get a chance to hear about related to uh board work and so I think that's also important for us as board members is try to educate our community members as it relates to some of the nuances of of being a board member and um you know you don't always it's not always about just what you see at the de during the meetings or uh when we get to run into at the football game or a grocy store or or wherever else we might run into
082you um so I do appreciate that and think this was helpful for us all and if we have uh any specific questions I would encourage that you board members to send them to Mrs Taylor so that we can um deal with them uh offline uh Under the Umbrella of attorney Cent confidentiality um and with that I certainly would entertain uh a motion for adjournment I would make a motion that we adjourn at I think it's 8:23 823 second second all those in favor I I any opposed hearing none the motion carries unanimously