Diane Blevins Posted September 12, 2005 Report Share Posted September 12, 2005 Proceedings of the Board of Trustees District No. 2, Yellowstone County High School District No. 2, Yellowstone County Billings, Montana July 25, 2005 Call to Order A meeting of a Panel of Trustees of the High School District, Yellowstone County, Montana, was duly held at The Lincoln Center, 415 North 30th Street, Billings, Montana, July 25, 2005, at 12:00 p.m. Those present included: Trustee Katharin Kelker, Trustee Joel Guthals, Trustee Malcolm Goodrich, Superintendent Rod Svee, Jeff Weldon, Rita Opie, Robert Opie, Diane Blevins, Larry Larson and Scott Beadle. The Chair designated Diane Blevins as the record keeper for the meeting. A complete transcript is attached to this minutes. Policy 1700 Appeal Meeting The Chair stated the Opies would be given thirty minutes to speak and Superintendent Svee would also be given thirty minutes. Mrs. Opie requested those present be sworn under oath. The Chair stated that is not done for these hearings, as they are not a legal hearing. Mrs. Opie read a written statement, which is attached to the minutes in its entirety. In her statement, the following codes were cited: Montana Code 27-1-802, School District Policy 5017, Montana Code 49-1-101, Montana Code 2-2-102, Montana Code, 2-2-121, Montana Code 2-3-203, Montana Code 2-2-104, Policy 4331, and Policy 4332. Mrs. Opie spoke for 29 minutes and has 1 minute left for rebuttal. Superintendent Svee addressed the Board and reviewed his handout as attached to the minutes in its entirety. Mr. Svee stated Ms. Manley’s e-mail challenges the Board to help restore into the community the pride held of Skyview and its staff. Mr. Svee contracted with Rusty Martin to conduct an investigation. Mr. Martin’s report is included in the handout to the Board. Mr. Svee stated he felt the record was accurate and a fair and honest look was given to the complaint. It was reported Mr. Svee had 14 minutes left for rebuttal. Trustee Guthals asked if there were any written provisions in the BEA contract with respect to regulation or supervision of off-duty conduct. Mr. Svee stated there was not and there was no authority for off-duty conduct unless it were some type of an activity beyond the normal workday. The Chair asked Mrs. Opie what her resolution should be. Mrs. Opie stated the counselor breached confidentiality and caused harm to her children. The Board has the responsibility of their employees’ actions. Trustee Guthals asked Mrs. Opie for a copy of her statement. Trustee Guthals asked Mrs. Opiewhat action she wanted the Board to take. Mrs. Opie did not feel Mrs. Manley should be a counselor. Mrs. Manley is no longer counseling Mrs. Opie’s daughter. It is a matter of trust. Trustee Guthals asked if Mrs. Opie had any information that Mrs. Manley might have had that was breached. Mr. Opie reported he spoke to Mrs. Manley three times. He felt anything said in the counselor’s office is privileged information. Trustee Guthals asked the Superintendent if the administration sent a memo out to faculty and staff regarding use of the e-mail system. Mr. Svee stated a memo was sent out and has been addressed at staff meetings. Trustee Guthals asked for copies of those memos be given to the Board and the Opies. Trustee Goodrich asked Mrs. Opie if relief was confined to job action. Mrs. Opie reported if the Board or administration had taken action in the beginning, she would have been satisfied. Mrs. Opie, in her rebuttal, stated the Board is responsible for the actions of its employees. Trustee Guthals stated he was not ready to make a decision at this point, as he needed additional information. He suggested the meeting could be reconvened after the data is received. When a decision is reached, a statement should be given to the full Board as to the panel’s decision. Trustee Goodrich concurred with Trustee Guthals. The Chair stated the Board does not get involved in personnel issues, which makes it awkward for us in the resolution. The Board will have some weighty decisions to make in regards to the e-mail system. Trustee Goodrich suggested they consider asking legal counsel to prepare a memo outlining the proper use of the e-mail system. He recommended the panel review the policies noted by the Opies. Trustee Guthals wanted a memo from legal counsel on applicable law for an employer’s ability to regulate off-duty conduct and an employer’s responsibility for off-duty conduct of employees. He also asked Mr. Weldon to see if he could find any authority to determine if an employee is on the job 24 hours a day. He asked Mr. Weldon to supply copies of any memos to the Opies. Mr. Weldon will provide an e-mail report at the August meeting. The Chair reported a meeting would be scheduled after August 15th. Staff will contact the Opies to set a date. Trustee Guthals asked Mr. Weldon to research the issue of privilege of communicating in a public forum, as in immunity and communication relative to public communication. The meeting recessed at 1:22 p.m. to reconvene at a time to be determined at a later date. The meeting reconvened at 12:00 p.m. on August 30, 2005. Those present included Katharin Kelker, Joel Guthals, Malcolm Goodrich, Clerk Leo Hudetz, Jeff Weldon, Superintendent Rod Svee, Diane Blevins, Robert Opie, Rita Opie, and Meg Opie. The Chair designated Diane Blevins as recorder of the panel hearing. Jeff Weldon, attorney for the District, provided additional information to the Board and the Opies. The Chair asked the panel members what the Trustees’ roll should be in relation to the District’s e-mail system. Trustee Goodrich felt Mr. Weldon’s information was very thorough. Mr. Goodrich’s understanding is the District is a conduit and not the generator of the emails that are problematic and there is no liability that could be determined on the part of the District in having emails come through the system. The Chair agreed with that understanding. Jeff Weldon stated there are two barriers to District liability relating to information shared through the email system. Federal law governs interstate communication. Service providers are not publishers in the normal context of defamation, liable sort of cases. If the District were challenged, that would be the first line of defense. The Chair stated she personally felt it was an inappropriate message. The issue for her is that we as the Board do not have the power to discipline members of the staff unless a recommendation comes from staff. She had responded to the email on behalf of the Board. She felt the email was addressed to the Board and was meant to tell them they were doing something that they were not to be doing. Trustee Guthals, after reading the email and the information from Jeff Weldon, it was his conclusion that neither the District nor the Board is responsible for unsolicited emails that are sent to the District or Board on the District’s website or that are picked up or resent to third parties. The Board did not create the email that is at issue and did not have any involvement in its content and did not intentionally publish or disseminate the email. Trustee Guthals felt this panel could determine there is evidence of misconduct that warrants a recommendation to the School Board to remand to the Superintendent for an investigation and possible disciplinary action. In his view, the full School Board has ultimate authority over the employment and discipline of school district personnel subject to administrative supervision of those employees, administrative recommendations and procedural and due process protections. The Chair felt that understanding raised the question of what the Board’s responsibility is for conduct of our staff members in off duty hours and what is our responsibility in terms of freedom of speech. Trustee Kelker reported the School Board has the responsibility ultimately of hiring and firing of staff, but by state law, it is only at the recommendation of the Superintendent. The Board can report to the Superintendent when it sees something that is inappropriate or contrary to policy and is handled by the Superintendent. Trustee Guthals stated the Board also has the authority to direct and ask the Superintendent to report back to the Board in a certain matter. Trustee Guthals reported he reviewed the information provided by Jeff Weldon and conducted an independent study of the issue of off duty hours and freedom of speech. He concluded the School Board and School District have very limited responsibility for intentional acts, intentional misconduct, by school employees. If the intentional misconduct occurs in the course and scope of employment, then there is responsibility if the misconduct was ‘reasonably foreseeable’. If the intentional misconduct occurs outside the course and scope of employment, then there is no responsibility. Trustee Guthals reported, after reviewing the facts in this case, it was his determination the sending of the email by Jane Manley on February 10, 2005 at 11:55 p.m. was an intentional act but did not occur during the course and scope of her employment with the School District. He has not seen any evidence showing Ms. Manley’s email was foreseeable by the School District or the School Board so Trustee Guthals did not believe or conclude the School Board or School District are responsible for Jane Manley’s email. Trustee Kelker stated her understanding was the right of free speech for a teacher is available to them in off duty times. As long as they are not purporting to represent the District, they have the right to express their own opinion. She felt if someone feels defamed by that, the remedy is in court and not before the Trustees. Trustee Kelker stated the only concern she has is if information that is obtained by a District employee in their professional role and is shared in an inappropriate manner. Trustee Goodrich agreed and felt there was no way of foreseeing the email or stopping the person from sending the email. Trustee Guthals voiced his concern about the email as he did not feel an employee of the School District should be engaging in conduct that is defamatory, derogatory or insulting toward a parent of a School District student. He felt it warranted administration to investigate and determine if disciplinary action should occur. He did not feel the cloak of free speech protects against that conduct. Trustee Guthals suggested more information be given to the panel or the full Board whether there was any misuse of confidential information or divulging of information. He did not feel the email met the standard of defamation and did not know if there was any misuse or divulging of confidential information. Trustee Guthals did not know if Jane Manley was sending the email to insult or offend Mr. and Mrs. Opie but felt it should be investigated. Trustee Goodrich concurred and stated he was bothered by the fact the communication was something less than defamation but something more than a routine communication leaving aside the fact of whether or not there was confidential information within the email. He wanted to know a little more about the rationale of the email and whether it is the kind of conduct that we should have with respect to our employees. The Chair did not believe it was the panel or full Board’s responsibility to determine whether a communication is defamatory or insulting, or is the administration prepared to do that. There are policies of the District about teacher conduct. She did not feel the Board or panel should be looking at staff emails. Trustee Goodrich felt the administration could investigate in light of policies and in respect to employee conduct and follow the normal review. Chair Kelker reported the Board would know about it if administration decided the individual’s conduct was such that it would require termination or if the Superintendent had investigated and taken action. The Board would not be involved. The Chair stated the Board would be involved with a penalty only. Trustees Guthals and Goodrich agreed. Trustee Guthals asked if a School District employee has a concern about what is going on in a school or that person’s place of employment, what is the proper means to address that concern? The Chair reported proper procedure is to go up the chain of command but employees are members of the public as well so they have the right to send letters to the Board. It is the decision of the Board whether they do anything with the information. Trustee Guthals suggested there be a distinction between comments that are general concern about the School District administration or the conduct of the District’s services and business versus a particular employment issue. The Chair stated there are mechanisms for employees to express their concerns. Trustee Guthals asked if it would be appropriate for administration to counsel Ms. Manley about the mechanisms available. The Chair stated the Board has addressed the issue of the email system and inappropriate use, and has changed the email system. She reported the only issue left for the panel was to respond to the allegation of defamation. The panel members agreed the email system has been addressed and changes made. The panel could affirm administration’s presentation of the facts, oppose that presentation, or to remand and ask for additional things to take place. The panel found general agreement with the information provided, but making clear to the employee concerns the Board has at the policy level about; a) how parents are treated by employees; b) the forums through which employees can reasonably address problems they have with their working conditions or Board policy; c) concerns that we have in general about revealing private information, and d) is there any information that would indicate what the intent of the email was in regards to the parents. Trustee Guthals stated he would like an investigation by administration to see if there was any confidential information revealed and whether the email was intended to be derogatory, defaming or insulting. Trustee Goodrich made the following motion with a second by Trustee Guthals: Motion that the panel will recommend to the full Board that it adopt the findings and conclusions of the administration with respect to the complaint subject to a remand to the Superintendent for further review for the following items: a) the treatment of the parents with respect to the conduct of Ms. Manley; b) whether Ms. Manley used proper channels for a concern about a work place issue; c) whether there was a divulging of any confidential or personal information by Ms. Manley; and, d) to define the intention of Ms. Manley in regards to the complainants in her email. Mr. Opie asked if it would be possible to address the Board. The Chair reported time had past for any statement from Mr. Opie. Those voting in favor of the motion were Joel Guthals, Malcolm Goodrich and Katharine Kelker. The motion passed unanimously. As there was no further business, the meeting adjourned at 12:55 p.m. Katharin Kelker, Chair Diane Blevins, Recorder http://www.billings.k12.mt.us/attachments/20050912094258.pdf http://www.billings.k12.mt.us/attachments/20050912094448.pdf http://www.billings.k12.mt.us/attachments/20050912094544.pdf Link to comment Share on other sites More sharing options...
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