Many school administrators preparing for their January board meetings have asked about the appropriate process for dealing with new board members, so we have prepared a short list of frequently-asked questions for your reference.
Do New School Board Members Have to Take an Oath?
School board members are not really required to take the oath of office that other elected officials are obligated to take. Section 11-101 of the Nebraska statutes contains an oath of office that “state, district, county, precinct, township, municipal, and especially appointed officers” must take. In Frans v. Young, 30 Neb. 360, 46 N.W. 528 (1890), the Nebraska Supreme Court held that boards of education are not required to take the oath prescribed by this section, because the term “district” applies only to judicial districts, and the term “municipal” to villages, towns, and cities.
What if We Want to Continue Having Board Members Take the Oath of Office?
Most Nebraska school boards have ignored Frans v. Young and continue to administer the oath of office found in section 11-101 to new board members. There is no harm in taking the oath and maintaining this long-standing tradition. Here is the oath which you can complete and have board members sign.
Even if your board decides to stop publicly administering the oath, new board members may still insist on taking the oath. Denying a public official the right take an oath might well violate the official’s First Amendment rights. In Newdow v. Roberts, 603 F.3d 1002, 1006 (D.C. 2010), a federal court held that President Obama had a “First Amendment right” to conclude his Oath of Office with “So help me God.”
What If I Have Just One Board Member who Refuses to Take the Oath?
We do not believe that you may lawfully prohibit a board member from serving in the event he or she chooses not to take the oath. There is a growing consensus among courts that an oath like the one from Nebraska’s statutes is probably unconstitutional. Although there is no Nebraska Supreme Court case interpreting the constitutionality of the oath, the U.S. Supreme Court and several other state and federal courts have looked at oath requirements unfavorably. For example, in Nicholson v. Board of Comm’rs, 338 F. Supp. 48, 56 (M.D. Al. 1972), a federal court in Alabama held that the phrase “So help me God” administered in an oath “infringes upon the free exercise clause of the first amendment.” Likewise, in Vogel v. County of Los Angeles, 68 Cal. 2d 18, (Cal. Sup. Ct. 1967), the California Supreme Court held that an oath violated the First Amendment where it required the promisor to swear he or she was “not a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States…by force or violence or other unlawful means . . . .”
These cases are just a few examples of numerous courts which have invalidated oaths like those found in Nebraska’s statutes. A Nebraska court may find these laws to be unconstitutional as well.
What if I don’t have enough old board members to constitute a quorum to open the January board meeting?
Simply open the meeting with your new board members. The new board members may sign their oaths before the meeting opens, or you may open the meeting and swear in the new board members as the first thing you do.
May the old board members act on the board’s old business and the new members act on its new business?
No. At most, board members whose terms have expired may perform ceremonial acts. They may not take any formal action because they automatically lose their authority to act on behalf of the school district when their terms expire, regardless of when their replacements are seated. Some districts mistakenly have the old board act on old business and then pass the meeting over to the new board to deal with new business. However, this should be avoided because it exposes the board to a charge of having non-members take action on behalf of the school district.
What Can Be Done at the Meeting to Show Appreciation for Both Incoming and Outgoing Board Members?
Many districts use the January meeting as a time to thank board members whose terms are expiring and to welcome new board members. This is an important interpersonal issue that you should not ignore. However, be sure that your board has complied with the legal requirements for changing membership on the board and that any gifts or items given in recognition of their service are given in compliance with the requirements and limitations of the Local Government Miscellaneous Expenditures Act (sections 13-2202 to 2204). For example, section 13-2203(2)(iii) permits one recognition dinner per year for elected and appointed officials, employees, and volunteers. The “maximum cost per person for such dinner shall be established by formal action of the governing body, but shall not exceed twenty-five dollars.” Section 13-2204(3) authorizes the expenditure of public funds “for plaques, certificates of achievement, or items of value awarded to elected or appointed officials, employees or volunteers [.]” Before spending money for such items, “the governing body shall, by official action after a public hearing, establish a uniform policy which sets a dollar limit on the value of any plaque, certificate of achievement, or item of value to be awarded.” This limit may not be changed more than once in any 12-month period. These requirements are most easily met by adopting a board policy that sets the expenditure limits.
What Else Can We Do to Get New Board Members Oriented?
We know that the first few months on the board can be overwhelming for both the new board members and their administrators. KSB is going to try to help with this problem. On February 11 at 6:00 p.m. C.S.T., we will host a 50-minute live webinar titled “Five Things Every New School Board Member Should Know Right Away.” The idea is to invite new board members to arrive at your February meeting an hour early so that they can participate in the webinar before their second board meeting. Of course, veteran board members are welcome to participate as well. If your board cannot participate in the webinar live, we will record the session and make it available on our website. If you would like to register for this webinar, click here.
If you have any questions about seating new board members or any other matter, please contact your school attorney or Karen, Steve, Bobby, Coady, or Mandy at (402) 804-8000 or ksb@ksbschoollaw.com.