BoardWise: Governance team members write in
By:
Christopher MaricleSpring 2014
Dear BoardWise:
I am a board president. Information from a school board closed session has been reported in the local media. I have reason to believe a certain board member is responsible for the disclosure. What should I do?
Signed,
Trying to Do the Right Thing
Dear Trying:
First and foremost, it is important to state that local governing boards should be guided by their legal counsel in legal matters. In most school districts, it is usually the superintendent acting on the board’s behalf who contacts legal counsel, but board presidents may also be given this authority. Board members should consult local policy regarding who is authorized to contact the district’s legal counsel (See CSBA Sample Board Bylaw 9124). Violations of confidentiality can be a challenging dilemma, and it can be considered from two perspectives.
The legal perspective: California Government Code 54963 makes it clear that “A person may not disclose confidential information that has been acquired by being present in a closed session … to a person not entitled to receive it” unless authorized to do so (see CSBA Sample Board Bylaw 9011). There is no question whether a disclosure constitutes a violation of law. It does. So what, if anything, should a board member do? This question can be guided by considering the outcome you desire. If you want the behavior to stop, this may be accomplished by dealing with the matter internally. If the disclosure has caused harm to the district and you believe it warrants a more severe consequence, you may want to report the incident.
Should you report? You could contact the superintendent, who may contact the district’s legal counsel to receive advice on what next steps to take, if any. You may also contact the office of the district attorney regarding a perceived violation, but you are not required to do so. Once notified, the DA may or may not investigate. If the DA investigates and concludes that a board member did disclose confidential information, the DA may or may not take action.
The governance perspective: Should you respond? Regardless of whether or not the incident is reported to the DA, the board member could be approached directly. An informal approach might include you and the superintendent talking with the board member about the disclosure, although that could place the superintendent in a difficult position. Formal action by the board could include censure or removal of the board member from a board committee. Any board action would have to be an open meeting, as breach of closed-session confidentiality does not qualify for a closed session—unless legal counsel determines that there is significant exposure to litigation, in which case the board may meet in closed session.
If you (and/or your board) decide to respond, there are some governance considerations. The manner in which board members approach one another about breaking confidentiality can have a serious impact on the governance team. Some practical guidelines for dealing with the problem include:
- Do not make assumptions about facts or motives.
- Focus your comments on the board’s responsibility for legal compliance, district health, and accountability to the community.
- Connect your comments to district values, board bylaws and other governance agreements.
- Try to have the conversation in a way that strengthens the partnership.
Good luck!
BoardWise is written by Christopher Maricle in CSBA's Policy and Programs Department.