WVSBA The Legislature

December 27, 2006 - Volume 25 / Issue 22

Overview Info

Stats

2006 Regular Session Adjourned Sine Die
Days Until 2007 Regular Session 15
Interim Session Remaining January 2007

Inside

 

News

The West Virginia School Board Association Executive Board met Nov. 4 and adopted new procedures for the association's print and electronic communications.

The Friday issue of The Legislature will relate to Senate and House committee and floor action while the monday issue will concern education and education-related bill introduced the previous week.

The board voted to provide the flagship publication, The Legislature, by electronic means to all county board members, county superintendents and others.

An electronic copy of the publication, however, will be forwarded to the county board central office for duplication by executive secretaries, and then distribution to members who do not receive it electronically. Members may still request hard copies, although the preferred format is electronic, which makes for faster and more cost-effective distribution.

The Committee on Communications and the Executive Board agreed to continue publishing the traditional two issues of The Legislature forwarded each week during the regular legislative session, although content in each Friday's edition should be streamlined. WVSBA Executive Director Howard M. O'Cull, Ed. D., remains the editor and is responsible for content.

Thus, the Friday issue of The Legislature will relate to Senate and House committee and floor action during the legislative week. Through a link to the Legislature's Web site, the Monday "bill edition" will allow members to electronically access the full text of bills being reviewed by O'Cull.

Lastly, upon a communications committee's recommendation, the WVSBA Web site will be scaled considerably to reflect links to West Virginia news media sites rather than to specific education and education related news articles. Both the Committee on Communications and the Board are concerned the latter approach, which was eliminated in September, is not cost-effective.

O'Cull is responsible for revising the Web site, as approved by the committee and the executive board, by the opening of the 2007 regular legislative session.

If you have any comments or questions about the new communications plan, please contact O'Cull at hocull@wvsba.org.

The West Virginia School Boards Association is preparing for the its 2007 Winter Conference Feb. 16-17 in Charleston at the Marriott Town Center hotel.

The West Virginia School Boards Association/West Virginia Association of School Administrators “Reception With Legislators” is scheduled for Thursday, Feb. 15 from 6 p.m. to 8 p.m., followed by the WVSBA Executive Board meeting.

The WVSBA Executive Board recommended the following conference program topics:

In addition to the training sessions themselves, which will include 8.25 hours of school board member training, the conference features legislative visits to the capitol arranged by WVSBA. These visits will occur Friday, Feb. 16, from 9 a.m. to noon, preceding the conference program which begins at 1 p.m. that day.

This is the last planned association training session until a meeting in May. That program will provide 4.5 hours of training, as it is a “drive-in” conference similar to the program format for this past November’s school security workshop.

The West Virginia School Boards Association/West Virginia Department of Education Training Standards Review Committee (TSRC), which has been reconstituted due to county board member election losses in May, must approve the conference program. That group will meet in early January.

About 50 persons have pre-registtered for the conference, according to WVSBA Administrative Assistant Shirley Davidson.

The West Virginia School Board Association’s Committee on Legislation (Committee of 55) approved six organization priorities for the 2007 Regular Session at its Dec. 8 meeting at Stonewall Resort in Roanoke, W.Va. The chief priority is providing salary increases to school employees.

As part of its "Legislative Philosophies," the committee addressed state board takeovers, adopting a resolution that would require the West Virginia Board of Education to provide a rationale for staying in a takeover county for more than three years.

The committee didn’t make specific recommendations for additional compensation and benefits -- the organization’s traditional practice. WVSBA will call for greater flexibility in deploying personnel in areas of critical need and shortage, among other recommendations.

Other priorities include the following:

In terms of board compensation, no specific recommendation was made, although members discussed a salary concept as well as an increase in per-meeting pay. Members rejected a proposal that would reduce the number of meetings for which compensation could be received – a past legislative practice when providing board member pay increases.

In regard to Regional Education Services Agencies (RESAs), the association urges the Legislature or state board to conduct a study about how RESA funds are distributed to counties.

There was some sentiment that members should be paid to attend training sessions, which are required by law, as several members have suggested, although that motion was not approved.

Members, however, did ask O’Cull to seek passage of legislation that would allow county board members greater leeway from employment to attend training sessions without loss of pay.

While the committee voted not make the Governmental Accounting Standards Board rules §34 and §45 as part of the Legislative Priorities, the association will closely monitor any legislation that may address this issue.

“Although there is concern about GASB, the committee felt this topic did not merit becoming a legislative priority,” said WVSBA Executive Director Howard M. O’Cull, Ed.D., the Committee on Legislation’s chairman. “Some counties actually appear less concerned about the initiative than others, especially those that have Certified Public Accountants (CPAs) acting as treasurers or business managers.

The committee agreed to closely monitor and support legislation that would implement a state Supreme Court decision that gives the Legislature until June 30 to address local laws that require county boards to support libraries.

In these nine counties, not only are county board education dollars directed to libraries but local share also is reduced accordingly. The court ruled the practice illegal.

The nine county boards affected by the ruling include the Berkeley, Cabell, Hardy, Harrison, Kanawha, Ohio, Raleigh, Tyler, Upshur, and Wood County Boards of Education.

(Please see article by Greg Bailey, a Bowles Rice McDavid Graff & Love attorney.)

Copies of the WVSBA Legislative Priorities and Philosophies will be distributed in mid-January.

O’Cull is meeting with education interest groups about the ruling’s ramifications, including the West Virginia Chapter of the American Federation of Teachers and West Virginia School Service Personnel Association. O'cull also plans an early January meeting of board presidents from the nine counties affected by the ruling. Some county boards are less concerned about the ruling than Kanawha County officials, according to information provided to O’Cull.

Incoming House Education Chairwoman Mary Poling, D-Barbour, has said she doesn’t know how the House will address the ruling. Senate Education Committee Chairman Robert Plymale, D-Wayne, has not commented on the issue. Cabell County is one of the counties affected by the ruling.

O’Cull plans to meet with state Library Commissioner J.D. Waggoner in early January.

As part of its “Legislative Philosophies,” the committee addressed state board takeovers, adopting a resolution that would require the West Virginia Board of Education to provide a rationale for staying in a takeover county for more than three years. A motion, defeated by committee members, would have set the rationale period at one year.

In regard to county board takeovers, O'’Cull said "There is growing concern about the practice of county board interventions, especially if they are or can be made effective. Among some county board members, admittedly looking at takeovers from a distance, there's a question as to whether or not county superintendents placed in takeover counties in the words of one member, 'compound and add to the problems for takeover.' Other members questioned whether state-appointed superintendents understand county culture and are active enough in the communities to bring about change in the school systems."

Other members, in discussing takeovers, noted the recent defeat of the Hampshire County Board of Education’s excess levy, and there was some discussion concerning possible defeat of levies having been previously supported by voters in other takeover counties.

O’Cull said takeovers often are necessary and that boards should work with the state to regain system control, pointing out that McDowell is scheduled to resume control of its system as early as next July. McDowell County Board of Education member Mike Mitchem emphasized this and urged takeover county boards to work with the state board.

O’Cull cited a recent doctoral dissertation about takeovers. The study, completed by a West Virginia county superintendent, suggested that state interventions work best when they are aligned with county board and county education culture change. The assigned county superintendent is most often the key player in successful takeovers – not the WVBE intervention itself – if that individual is able to bring about a school system cultural change, especially among central office administrators and principals.

Moreover, the dissertation showed that county board members can help make interventions work, although given their reduced power, most cultural changes must occur through the county superintendent as a change agent. County boards, O’Cull notes, can thwart cultural change, particularly if their goals aren’t aligned with those of the state or if successful efforts haven’t been made to mesh goals and outcomes.

In regard to Regional Education Service Agencies (RESAs), the association urges the Legislature or state board to conduct a study about how RESA funds are distributed to counties and the per-pupil “variable of such.”

Members are concerned that RESAs have been “less than forthcoming” to help counties with GASB requirements and that, while RESAs may be studied, more needs to be done as to their “efficacy,” and overall value to county boards.

A recent RESA report was presented to the Legislature, outlining some RESA reforms, including closer WVBE monitoring of the agencies, which were established in 1972.

RESAs, throughout the years, have been the subject of considerable study and controversy about their mission and purpose. These issues were heightened through a recent $1 million embezzlement case involving RESA I that surfaced last January. The case prompted a legislative study.

Copies of the WVSBA Legislative Priorities and Philosophies will be distributed in mid-January.

House of Delegates Speaker-Elect Rick Thompson, D-Wayne, has appointed Del. Mary Poling, D-Barbour, House Education Committee chairwoman.

Poling, who has served in the Legislature since 2001, succeeds Del. Tom Campbell, D-Greenbrier, who served one term as HEC chairman.

O'Cull said Poling is a former member of the West Virginia Education Association but that should not necessarily alarm county board members. "Del. Poling is willing to listen to all sides of issues, including issues that have affected or will affect county boards. On behalf of the association, I look forward to working with her."

The former mathematics teacher has been a member of the HEC since joining the Legislature and serves on several interim education committees, including Education Subcommittee C (School Aid Formula), Subcommittee A (general public education), and Subcommittee B, which has been studying the federal No Child Left Behind Act and its costs for West Virginia. By virtue of being a member of the HEC, she also serves as a member of the Joint Standing Committee on Education.

Poling was vice chairwoman of the Industry and Labor Committee and has served on the Agriculture and Natural Resources Committee, the Roads and Transportation Committee and the Veterans Affairs/Homeland Security Committee.

West Virginia School Boards Association Executive Director Howard M. O’Cull, Ed.D., said Poling is known for her fairness. “She’s objective and a quick study about education issues,” he said.

O’Cull said Poling is a former member of the West Virginia Education Association but that should not necessarily alarm county board members. “Del. Poling is willing to listen to all sides of issues, including issues that have affected or will affect county boards. On behalf of the association, I look forward to working with her.”

Although Thompson has not named the committee’s vice chairman, Del. Brady Paxton, D-Putnam, likely will assume that position. He has served on the HEC since 2001. Paxton is a former teacher and coach in Putnam County.

Thompson was elected Speaker of the House on Dec. 10, although the final vote for the position won’t occur until the opening of the 2007 legislative session in January. He was elected on a 42-29 vote and succeeds Speaker Bob Kiss, D-Raleigh, who had served the past 10 years.

House Majority Whip Del. Scott Varner, D-Marshall, the Kiss heir-apparent, appeared to lose ground throughout the Speaker’s race, with most legislative observers suggesting the House wanted to change direction, particularly in regard to House floor and committee operations.

Some critics, including Senate Majority Leader Vic Sprouse, R-Kanawha, speculate the House will turn more "leftward," although Thompson, as well as those selected to head committees, have said the House will govern from the "center."

Thompson’s committee appointments – as his election itself – haven’t been without controversy, including the naming of Carrie Webster, D-Kanawha, as Judiciary Committee Chairwoman and Joe DeLong, D-Hancock, as Majority Leader.

Some critics, including Senate Majority Leader Vic Sprouse, R-Kanawha, speculate the House will turn more “leftward,” although Thompson, as well as those selected to head committees, have said the House will govern from the “center.” Some conservative groups have said the House may reverse on tort and insurance reform and may champion more liberal approaches to abortion and social issues. Other groups have noted that in regards to abortion, Thompson is “pro-life.”

Del. Harry Keith White, D-Mingo, will head the House Finance Committee, replacing Del. Harold Michael, D-Hardy. According to most press reports, Michael was a factor in Thompson’s election based on his steering Budget Digest money and other special appropriations to his Eastern Panhandle district.

In the past, Michael supporters said U.S. Sen. Robert C. Byrd, D-W. Va., has engaged in this practice for most of his tenure as a federal lawmaker.

What will happen to the remainder of Kiss’ leadership team, including Michael who is considered to be the most knowledgeable legislator on the state budget, has become a matter of considerable speculation. In the past, members of previous leadership teams have been relegated to the House “back row,” although some observers believe Thompson will include them in significant positions.

Thompson is a Wayne County trial lawyer, and has been a lawmaker since 2001. He served a legislative stint in the 1980s.

Some newspapers in West Virginia see Thompson’s election as part of a South-North split, although the addition of DeLong and House Majority Whip Mike Caputo, D-Marion, appear to allay those concerns.

Thompson began his efforts to become speaker last year, in part, by questioning House Budget Digest money distribution. He also worked with House members to build a coalition of rank-and-file Democrat lawmakers who sensed they were being left out of major House decisions because of Kiss’ leadership style.

Some newspapers in West Virginia see Del. Rick Thompson's election as part of a South-North split, although the addition of Hancock County's DeLong and Marion County's Caputo, appear to allay those concerns.

Varner is a Marshall County school administrator.

Del. Tim Armstead, R-Kanawha, was elected House Minority Leader, succeeding Del. Charles Trump, R-Morgan, who did not seek re-election in 2006.

In the Senate, there were no changes in Democrat leadership, with President Earl Ray Tomblin, D-Logan, being re-elected. Sen. Dan Caruth, R-Mercer, was elected Minority Leader, succeeding Sprouse who didn’t seek re-election to the position.

Thompson is the first Speaker-Elect since the 1940s to be elected without being part of a predecessor’s leadership team, according to Charleston Gazette reporter Phil Kabler.

Sources include the Associated Press, the Charleston Gazette, the Charleston Daily Mail, West Virginia MetroNews, and WVSBA reporting.

By Hank Hager

Senate Education Committee Counsel

Public Education Subcommittee B – NCLB Costs

Public Education Subcommittee B, which has studied the costs and effects of the federal No Child Left Behind Act (NCLB) for the past several months, met Dec. 11.

There were two items on the agenda for this meeting: First, Bob Palaich and John Myers, both with Augenblick, Palaich and Associates, discussed the preliminary results of the NCLB cost study they are conducting for West Virginia.

They began the presentation with background on the study. They indicated they had conducted NCLB cost studies for other states, but this one was different because, in addition to determining the cost of compliance, they also were determining the cost of meeting the proficiency requirements through the 2010-11 school year.

They presented estimates of both statewide local costs and the state level costs. Then they presented the total preliminary NCLB costs for the years 2003-04 through 2010-11. The annual cost for the 2003-04 school year was $73.9 million, and escalated to $159.1 million for the 2010-11 school year.

The next item on the agenda was a discussion of the recommendations that the subcommittee would make for the re-authorization of NCLB. Some of these recommendations related to funding issues, the graduation rate, assessments, accountability and adequate yearly progress, teacher quality and 21st Century Skills.

Education Subcommittee C - School Aid Formula

The only issues discussed during this meeting were the potential recommendations the subcommittee could make. Dr. Tom Witt, study consultant from West Virginia University, and Dr. Cal Kent, study consultant from Marshall University, separately discussed each potential recommendation.

Some of the recommendations they discussed included decreasing the percentage of the regular levy rate used for calculating local share from 98 percent to 90 percent gradually over several years; requiring an extensive review of assessment practices for real property; use of a “cost-of-living index” to establish different levels of support under the formula; reviewing methods used in other states to implement real property assessment at required levels as they relate to the formula; a comprehensive study of how special education should be financed; continued investigation of the impact of changing student demographics on school finance; and a review of “performance-based” rather than “needs-based” methods for school finance.

Note: Final subcommittee recommendations will be considered during the Jan. 7-9 interim meetings.

Editor’s note: Gov. Joe Manchin early last summer appointed a work group to study the state’s employee grievance procedure. This is an effort the Legislature’s Joint Committee on Government Organization (Subcommittee C) had undertaken the past three years.

On Dec. 6, the governor’s group recommended passage of legislation relating to grievance procedure reform. The Joint Government Organization Subcommittee C accepted that legislation with one amendment relating to reportage during December’s legislative interim meetings.

Noelle Starek, counsel to the governor’s working group and to the Joint Government Organization Subcommittee, provided the following summary of the legislation. Starek’s summary is in the form of the bill’s abstract.

PROPOSED LAW PRESENTED TO THE COMMITTEE: The governor appointed a workgroup that met over the last six months to address problems with the current grievance process. The (Joint Committee on Government Organization Committee Chairmen) then appointed a subgroup of interested parties that worked diligently to draft a proposed bill with agreed-to changes by all parties. The proposed bill was presented to the whole workgroup on Dec. 6, 2006, and the following is a summary of the proposed bill before the committee:

The workgroup desired to promote the goals of the process being fast, fair and cost effective. Further, the group wanted to address a lack of trust/integrity that employees have with current system. Lastly, the group discussed alternative dispute resolution (ADR), specifically arbitration, as a means of redressing the problems, but chose to take “baby steps” to develop familiarity and comfort with ADR.

With regard to the drafting, there are significant strike-outs and inserts, most of which are simply rewriting current law or moving sections around to be in a proper format. In general, the workgroup was more comfortable with changing sections already in code as opposed to creating one new, consolidated chapter.

The new West Virginia Employee Grievance Board begins July 1, 2007 with five new members appointed by the governor:
One person from the state 's largest labor organization; One person from an education employee organization; One employer from the executive branch; One employer from education; One citizen member.

The members have three-year terms and must meet four times a year.

Numerous technical and consistency changes have been made. Also, of note is that higher education was moved by prior statute from §18-29-1 et seq. to §29-6A-1 et seq. and this has been clarified.

§18-29-1 et seq. Education Employees Proposed Grievance Process (Part of level one and all of level three were removed from current levels)

Level 1: Immediate Supervisor: The grievant has 15 days to file a written grievance with the immediate supervisor, who will hold a conference within 10 days and issue a written decision within 15 days. Parties may agree to move directly to level three or level four, or a party may go directly to level four upon being discharged, suspended without pay or demoted or reclassified causing loss of compensation.

Level 2: Mandatory Alternative Dispute Resolution: Within 10 days of an adverse decision at level one, the grievant must request mediation (by administrative law judge, ALJ), private mediation (chosen and paid for by parties; requires mutual consent), or mediation-arbitration (conducted by ALJ; requires mutual consent; if mediation fails, ALJ can become arbitrator and decide grievance) to be held within 20 days.

Level 3: Chief Administrator: Within 10 days of report that ADR was unsuccessful, the grievant may file written appeal with the Chief Administrator or the grievant may waive the level three hearing. The hearing by the chief administrator is to be conducted within 15 days and a decision issued within 10 days.

Level 4: Adjudication with ALJ: Within 10 days of waiver or adverse decision at level three, the grievant may file a written appeal with the board requesting a hearing, to be scheduled within a reasonable time in consultation with the parties.

Appeal: Same process but only to Kanawha County.

§29-6A-1 et seq. State Employee Grievance Process (current levels one and three removed; time frames increased and made consistent with Ch. 18)

Level 1: Chief Administrator: The grievant has 15 days to file written grievance with the chief administrator, who will hold a conference within 10 days and issue a written decision within 15 days. Parties may agree to move directly to level three, or a party may go directly to level four upon being discharged, suspended without pay or demoted or reclassified causing loss of compensation.

Level 2: Mandatory Alternative Dispute Resolution: Within 10 of an adverse decision at level one, the grievant must request mediation (by ALJ), private mediation (chosen and paid for by parties; requires mutual consent), or mediation-arbitration (conducted by ALJ; requires mutual consent; if mediation fails, ALJ can become arbitrator and decide grievance) to be held within 20 days.

Level 3: Adjudication with ALJ: Within 10 days of unsuccessful ADR at level two, the grievant may file a written appeal with the board requesting a hearing, to be scheduled within a reasonable time in consultation with the parties.

Appeal: Same process but only to Kanawha County

The majority of section three is current law, but has been consolidated with section six (hearings) and rewritten to be in better form and order, more consistent, and includes these general provisions and changes:

-time frames

-default- new language cleaning up sections, making them consistent, stating the employer’s defenses for “injury, illness or a justified delay not as a result of negligence or intent to delay the grievance process,” clarifying that employee must choose within 10 days in writing to proceed to the next level or to enforce the default, and removing the presumption, which clarifies that the ALJ will be determining only whether there are any defenses and if the remedy is clearly wrong or contrary to the law.

-defenses

-laches- language added to state process that allows employees to get up to one year back pay on a continuing grievance

-withdrawal and reinstatement

-consolidation and groups of similarly situated employees

-representation- definition sections clarify that it cannot be a supervisor that evaluates the employee; subsections in section three both include Weingarten rights, the right to have a representative present at an investigative conference (there is disagreement among the workgroup as to whether this was agreed to/voted on in meeting)

-reprisals

-forms- better availability at workplace; to be created by board and records kept by board for data collection purposes

-discovery

-conferences and hearings- more flexibility has been drafted into the process for the date and time of the hearings in accommodation to the parties’ work schedules

-grievance decisions

-preparation time- sections not consistent

- witnesses are added to the section giving them time off for their roles in the grievance process

-there is a four-hour limit for state employees

-grievance files

-number of grievances

Another inconsistency of note is the allocation of costs, section §8 of both articles, wherein there is a monetary limit for recovery of costs by state employees or their representatives.

§29-6A-1 et seq. West Virginia Employee Grievance Board

The workgroup proposes that the old board, including board members, hearing examiners and ALJs, terminate on June 30, 2007.

The new West Virginia Employee Grievance Board begins July 1, 2007 with five new members appointed by the governor: One person from the state’s largest labor organization, one person from an education employee organization, one employer from the executive branch, one employer from education and one citizen member. The members have three-year terms, must meet four times a year, can be removed for cause, hire ALJs, prepare a budget, draft rules and procedures, create forms, and file mandamus proceedings against employers that fail to comply with the reporting requirements.

There are new significant data collection and reporting requirements for the Board in §29-6B-3. The board sunsets in 2010.

Note: These are the affected provisions of state law: CODE REFERENCE: Amend and re-enact §18-29-1 et seq. and §29-6A-1 et seq.; New §29-6B-1 et seq.

 

WVSBA Briefs

The second edition of the association's Handbook for county board members is now completed and is to be mailed in early January, according to West Virginia School Board Association Executive Director Howard M. O'Cull, Ed.D.

O'Cull explained that the handbook took several more months than anticipated to complete due to member requests for additional material, editing and paring of material.

"This is a fine document," he said.

The full title of the Handbook is the "2006 - Second Edition 'Leadership Skills' County Board Handbook."

Gene Bailey (Mercer) served as committee chairman.

Resources

By Lew Brewer, Executive Director West Virginia Ethics Commission

County board of education members frequently ask the Ethics Commission how to comply with the Open Governmental Proceedings Meetings Act in preparing their meeting agendas or convening in executive session.

How specific does the agenda have to be?

The requirement to prepare meeting agendas was added when the act was amended in 1999. Since then, members of governing bodies have asked for clarification on how much detail should be in a meeting agenda.

The Ethics Commission generally has held that the description in an agenda should be reasonably specific.

The Ethics Commission’s Committee on Open Governmental Meetings generally has held that the description in the agenda should be reasonably specific so as to make the public aware of the particular matters that will be addressed at the meeting. The committee has further determined generic descriptions that only state “personnel matters” or “new business” do not provide the reasonable notice required by the act.

In the context of school board meetings, the open meetings committee has provided examples for appropriately listing personnel matters in a school board agenda, such as “filling the principal’s position at Mannington High School,” or “creating an itinerant music teacher position for the Downs elementary area,” and “transferring a custodian to fill a long-term substitute position at Sunshine Middle School.” The committee concluded a board does not, however, have to name in the agenda the employee being recommended for a vacancy.

Sometimes a matter that requires official action may arise after the meeting agenda is prepared and provided to the public and media. The committee’s opinions authorize amendments to an agenda up to two business days before a meeting, not counting the day of the meeting, Saturdays, Sundays or holidays. Any amended agenda must be disseminated by the close of business on the first of the two business days included in the notice period, and in the same manner as the original agenda.

Routine matters that arise after an agenda has been issued, and the opportunity for amending the agenda at least two business days in advance has passed, should be held over until the next meeting. However, an agenda item may be added if it involves “an emergency requiring immediate official action.”

Emergency items should be included in the meeting agenda as far in advance of the meeting as practical, and should include a description of the facts and circumstances that constitute an emergency. These same facts and circumstances likewise should be documented in the meeting minutes when an emergency matter is addressed.

What’s the procedure to convene an executive session?

The open meetings committee frequently is asked about the procedure for convening in executive session to discuss a personnel matter. Ordinarily, there will already be an item on the meeting agenda, such as “filling the principal’s position at Urban High School.” The best practice is for one of the board members to make a motion to convene in an executive session to discuss that agenda item based on the “personnel exemption.”

The open meetings committee previously has ruled it is not necessary to refer to “Section 6-9A-4(b)(2)(A) of the West Virginia Code,” as such a legalistic approach would more likely confuse than enlighten the public.

The Open Meetings Act specifically states that general personnel policy issues may not be discussed or considered in an executive session.

Once a motion is made, the board president presiding over the meeting should repeat the motion, again noting that the basis for convening in an executive session involves the personnel exemption. Then, a majority of the members present must vote to convene in executive session before the meeting may be closed to the public and the media. Except for certain specific matters such as student discipline, security procedures, academic rewards and determining recipients of scholarships, county boards may not make decisions in executive session.

What happens if a personnel matter comes up that is not on the agenda and does not involve an emergency requiring official action? The Committee on Open Governmental Meetings also addressed this in a recent opinion, authorizing a governing body to go into executive session only in the following “narrowly limited” circumstances:

  1. First, the item to be discussed must involve a matter that is authorized for discussion under one of the exceptions contained in §6-9A-4 of the act, or must otherwise be exempt from the requirements of the act.
  2. Second, a majority of the governing body must vote to go into executive session.
  3. Third, the discussion must be limited to logistical matters (such as whether the matter requires official action, when the governing body can meet to consider or decide the matter, who should attend the subsequent meeting, and what information or documentation needs to be available at the subsequent meeting.)
  4. Fourth, no official action may be taken until the it me appears on the agenda for a properly noticed meeting.

One final word of caution about personnel matters -- the Open Meetings Act specifically states that general personnel policy issues may not be discussed or considered in an executive session.

For example, a board is considering a personnel policy that states whether a teacher who works at a particular school would be given preference to fill an extracurricular coaching vacancy. Even though examples of particular coaches who would be included or excluded by such a policy might arise in the discussion, this still would involve a general personnel matter that must be discussed in an open meeting.

Editor’s note: Brewer is a frequent contributor to The Legislature. For more information about the Ethics Commission, open meetings or to view advisory opinions, visit http://www.wvethicscommission.org/.

Commentary

For years, Kanawha County Board of Education members complained each year when the time came to write what is now a multi-million-dollar check to the Kanawha County Public Library. The fact that 46 other county boards of education in West Virginia had no similar financial obligation stuck in the craw of many board members, especially during difficult times when student enrollment was down and employees had to be laid off.

After nearly 50 years of forced support of the library, the board voted to challenge the funding arrangement and initially was disappointed by a Kanawha County Circuit Judge ruling.

After nearly 50 years of forced support of the library, the board voted to challenge the funding arrangement and initially was disappointed when Kanawha County Circuit Judge Charles King ruled it constitutional and said it must continue. However, in a 3-2 decision, the West Virginia Supreme Court of Appeals reversed King’s ruling, determining the funding scheme unconstitutional.

The manner in which county board of education funds were extracted to support the library was somewhat circuitous. In 1957, the Legislature passed a special act (special acts do not appear in publications compiling West Virginia’s school laws) requiring the Kanawha County Board of Education to devote a portion of its local levy to support the Kanawha County Public Library. The amount of funding generated by each county’s local levy is considered and supplemented with state funding in amounts calculated to achieve funding equity among all county boards of education.

Because the state considered the amount devoted to the library within Kanawha County’s local levy, the state provided less funding. The net effect to the Kanawha County Board of Education was a reduction in state funding equal to the amount diverted to the public library. The amount diverted to the library from 2002 to 2004 totaled $4.4 million.

In reaching its conclusion, the Supreme Court made the following points:

The Supreme Court concluded Judge King did not apply the right standard (strict scrutiny) and that the state failed to show a compelling state interest in treating the Kanawha County Board of Education differently by requiring it to contribute funds to the local public library while relieving the significant majority of other county boards of education of similar obligations. The justices agreed that the financing system was “no fair.”

Justices Albright and Starcher wrote stirring dissenting opinions lamenting the demise of robust funding for public libraries. They expressed their concern about the court’s intrusion into school finance, asserted that it more properly falls within the legislative arena. - Greg Bailey, Esq., Bowles Rice McDavid Graff & Love, is a member of the firm's education group.

Within the world of educational policy, there is no more maligned word than “micromanagement.”

For many, this is the worst description a school board member can have or, more likely, earn, especially because the micromanager perceives he or she is on the right track. In most scenarios, the micromanager believes he or she is the only member who asks or is willing to ask the hard questions.

Truly, however, micromanagement is related to individual acquisition and use of information. Some county board members wear the micromanagement label like a badge, using it to validate their commitment to the system against all odds. It ensures the system is responsive to its mission and aims, at least as they often see them.

Some superintendents say they must deal with a “Devil’s Triangle,” a board majority of micromanagers.

Board members, no matter how hard they can or will try, cannot manage systems.

Let’s start with a new definition of micromanagement or at least a new term that might displace misconceptions about the word.

A micromanaging board member is one best described as a “non-aligned, unauthorized system(s) intervener,” or NUSI. NUSI appears related to “nuisance.” This is no coincidence, although all micromanagers aren’t nuisances. Indeed, just like rogue members, they may be on to something in terms of deeper systems truths.

Let me point out that most micromanagers are county superintendents and school administrators in the strictest sense of the term because micromanagement relates, at least in most naked terms of definition, to management. School board members, despite accusations about micromanaging, are system interveners when they engage in their craft.

Board members, no matter how hard they can or will try, cannot manage systems. They can affect a system’s outcomes and may even thwart the intent of administrative or board-related programs, although their modus operandi is more in terms of non-aligned, unauthorized meddling. This meddling sometimes is just for effect or out of passion for a cause. More often than not, though, it’s just to ensure things are going “right” in the system.

Just as superintendents may micromanage down the line or principals may micromanage staff, some micromanaging board members are insecure people who believe their interventions are necessary to ensure system honesty or to control outcomes.

Thus, they ply their trade through regulation and strangulation. The higher one climbs on the educational management ladder, the greater the penchant for micromanagement because of broadened spans of control. Some education CEOs and bureaucrats make sure they employ the trusted micromanager/chief loyalists so they can micromanage, albeit above the fray.

Micromanagement may arise from internal sources, such as concern for details, increased performance pressure, or insecurity.

The key ingredient in micromanaging is the validation the micromanager – the “NUSI” – gets from his or her actions. Unfortunately, this validation often appears to be characterized by meddlesome behavior, especially if the action is not the accepted norm of the board.

Validation and insecurity, while possible hallmarks of micromanagement, are only part of the picture. Some micromanagers actually exude confidence. They are articulate and they usually want to know if or how things are working. They may determine that information about programs and projects is less forthcoming than to their liking.

The real heart of micromanagement is all about information. If we assume the role of the county board is to convert information from the superintendent into decision making, then micromanagers, to their credit, may be more attuned to the content, quality and validity of that very information. This approach may rankle the superintendent, who may have to validate information. But it also can irritate other members of the board who, due to experience on the board, temperament or board norms and culture, simply trust the administration’s information.

In fact, these members often conclude that questioning administrative information constitutes micromanaging, which is the most common example of how the term is used in West Virginia. Thus, some board members avoid confronting hard system issues or shortcomings to avoid micromanaging (as they see it) or become labeled as micromanagers, especially if this is the ingrained culture of the board.

Given this context, a board member easily can be blamed as being a micromanager when he (it’s more likely a he) seeks clarification or greater validation for information. The board is forced to become more inquiring when most members may have determined in their own minds or collectively that administrative information is adequate. While it would be unfair to say the micromanager’s quest for information slows the decision train, there are a few more stops at the central office depot.

Thus, the greatest stone cast at micromanagers is that they don’t trust the superintendent or, more precisely, his or her information or administratively gathered information. This is where NUSI comes into play.

The micromanaging board member - like the rogue board member - operates to gather, use and effectuate information to advance his or her causes.

The micromanager is a non-aligned board member. While loner is too strong a term, independent may be too faint to describe the micromanager. By being non-aligned, the NUSI is not beholden to normative board culture and modus operandi. She becomes her own person in her own right and for her own reasons – insecurity or not.

Although one may entrap a recalcitrant member by making him or her board president, the same usually cannot be said about the micromanager because he or she operates independent of other members. Moreover, attempts to corral the member often backfire because the micromanager may easily attract like-minded follow travelers, even system administrators and employees who may feel similarly grieved or left out of the informational/decisional loop.

What may link the often motley grouping is the strong notion that the system, namely current or past administrations, has slighted them. Of course, the follow travelers will include the usual huddle of board-watchers and aginers whose passions are ripe for picking.

Given these groupings, the board and superintendent usually perceive that something has to be done about the micromanaging board member, including possible sanctions, such as censuring. This duty usually is reserved for the superintendent and often blossoms into a contest between him or her and the micromanager. Time and energy are wasted trying to corral the member.

Of course, the micromanager expects such and gears accordingly, upping the ante with his or her behavior to validate the notion the superintendent is out to get the member for, of all things, raising questions.

Viewed from this context, the NUSI’s actions are unauthorized by those on whom he or she is focusing. The NUSI does his or work uninvited, becoming a self-appointed and self-anointed system intervener. Indeed, few NUSIs are agents of the board or acting on behalf of the board when attempting or succeeding in system intervention.

System intervention, however, is difficult for a board member to realize – unlike a county superintendent who chooses to micromanage his staff’s work and outputs. System intervention, in terms of micromanagement, ranges from bad decorum and behavior to genuine efforts to thwart or modify system goals and objectives in such a way that is active and palpable. This is why school boards have few micromanagers but some rogue members.

Why ? Micromanagement is a business term defined as a management style in which a manager closely observes or controls the work of his employees. Obviously, the term isn’t flattering. In contrast to giving general instructions on smaller tasks while supervising larger concerns, the micromanager monitors and assesses every step.

Micromanagement may arise from internal sources, such as concern for details, increased performance pressure, or insecurity.

As practiced by school administrators, the result is a stressful workplace and may result in employee turnover. Thus, the points that must be made are 1) county board members, even if meddling in the system, can’t set aside or singularly cause changes in management, and 2) they cannot terminate personnel; change state law; redirect system resources; commit the system to their ends or accomplish similar objectives without at least two other votes from fellow board members – a Devil’s Triangle. (Even if the three votes are “there,” some system interventions cannot be achieved due to state laws or state Board of Education rules and edits.)

Despite their motivation, the NUSI’s efforts may de-motivate employees, create resentment, and damage trust.

Thus, we come to the third point: Most NUSIs are after information to validate their positions, whether rational or not, and will try to twist the system through whatever means, particularly the board meeting, to get the information they believe is necessary for “good” decision making.

Let's give county board members the information and rationale for making sound decisions. There'd be a lot less use of the micromanager term and we'd realize that rogue members - like rogue elephants - do a lot more damage.

These efforts often are converted into the slickest of strategies, namely confronting the administration “on the spot” in regard to seeking “the truth.” Whole continents have been engulfed in conflagrations about what is truth, so igniting a fire in the board room is easy. The long-term effect can be demoralizing, especially if the superintendent doesn’t shield his or her administration from accusations of hiding information or using information to advantage or, worst of all, distorting information.

If NUSIs either are in the information loop – in some counties they clearly are not – it becomes harder for them to micromanage, leaving their greatest appeal as one of “accept what I am saying or proposing.”

Sadly, a NUSI will see the flaw of this approach in that it disarms him or her. Thus, the individual will continue to fall back on the convenience of informational validity. If their tactics become impossibly disruptive to board operation and function, these individuals may become the dreaded rogue members.

Unfortunately, some county board members and, more often the county superintendent, become defensive about recommendations if questioned, especially if the informational rationale itself is questioned – a pet NUSI tactic.

Yet, it isn’t all information. A NUSI will often seek to independently intervene in the system to “check things out” which usually is a self-fulfilling journey to validate his or her arguments.

There are NUSIs who will convene meetings in troubled schools; talk to disgruntled employees or parents; or who will take the lead and charge on certain issues that may be important only to them. To the degree these efforts can thwart board policy, the NUSI clearly has attempted to intervene in the system and, again, risks falling into rogue member behavior.

No matter the appellation, these types of interventions occur but are not typical of micromanagement in West Virginia. It is information-based primarily, rather than action-oriented, to disrupt the entire system. (These members are better termed rogue members).

Still there is something about NUSIs that may lead to attempts to thwart system goals and objectives and that is the member’s areas of expertise. If one is a banker, for instance, he or she may have a greater interest in banking or fiscal issues and may display it by delving more deeply into the system than other members. The same can be said for contractors, former educators and others.

More often, however, these members don’t display micromanagement convictions or traits.

The best way to summarize is that West Virginia has few micromanaging county board members because, in a holistic sense, county board members can’t change the course of direction of systems except when the member personally interjects himself or herself into the system through overt action. Admittedly this does happen, but is the action as frequent as we hear?

The micromanaging board member – like the rogue board member – operates to gather, use and effectuate information to advance his or her causes. A chief difference is that the rogue member, through disposition, may seek to truly exploit or disrupt the system while the NUSI simply comes to the table as a non-aligned member whose quests for information and whose demeanor toward system information is often uninvited and who, as a result, seeks to intervene in the system to gather independent (information) to validate his or her cause which may include a certain insecurity of position.

Whether NUSI or micromanager doesn’t matter: It’s all about information – its collection, use and validity. Many board members have been maligned as micromanagers – a most pejorative term – when most micromanagement actually happens in central offices between superintendents and line administrators or between principals and their staff.

Let’s get rid of the term micromanager (and NUSI too). Let’s give county board members the information and rationale for making sound decisions. There’d be a lot less use of the micromanager term and we’d realize that rogue members – like rogue elephants –do a lot more damage.

Now for the cliffhanger: What can a county board do about a micromanaging/NUSI member? Read the Jan. 12, 2007 issue of The Legislature.

You’ll be surprised.

By Dianne Weaver
From the Hur Herald

The state has targeted 121 more elementary schools for closure, in some cases creating long bus rides for children as young as four.

Robert Plymale, the chairman of the West Virginia Senate's Education Committee, told Challenge WV members that "No School Building Authority money should be spent on an elementary school that is going to exceed a 30-minute bus ride."

Speaking at the group's annual conference in Charleston, Plymale expressed concern about the proposed closure of the 121 elementary schools.

West Virginia has already consolidated hundreds of public schools, creating long bus rides for several thousands of students, many on school buses over one-and-one-half hours each way.

"We need to require the SBA to report each year on true travel times at all grade levels to LOCEA (Legislative Oversight Committee on Education Accountability)," he said. Challenge WV says the state has failed to provide accurate travel times.

Linda Martin, Challenge WV coordinator, said "We are happy that Sen. Plymale will champion the cause of keeping our small children in their community schools."

"No School Building Authority money should be spent on an elementary school that is going to exceed a 30-minute bus ride. We need to require the SBA to report each year on true travel times at all grade levels to LOCEA." - Sen. Robert Plymale, D-Wayne, chairman of the Senate Education Committee.

The conference - "Our Communities, Our Schools" - focused on creating a dialogue over the future of community-based schools, also included a discussion with First Lady Gayle Manchin, House Education Committee Chairman Del. Thomas Campbell, House Education Committee Vice-chair Del. Larry Williams and Director of Education Policy, Jay Cole, Office of the Governor.

Sen. Plymale said something could be put in legislation, if a county chooses to exceed travel guidelines, they would have to pick up the cost of transportation.

"We should look at renovation, especially in elementary schools, whenever possible, rather than closure or consolidation," Plymale said.

Linda Martin said Challenge's long-time mission is to stop the harm. "We want to save the smallest children from what has already been steam-roller consolidation," she said, expressing pleasure that legislators have realized the value of community schools.

Gayle Manchin said, "With a position now open on the SBA, it gives a new way to assure the SBA is not the same it's been in the past, with different priorities."

Mrs. Manchin says consolidated schools have less participation and a lack of unity. "Students do better when parents and community are involved," she said, "Of great interest to the governor and myself is to make sure every child has the same opportunities."

Del. Campbell, a long-time advocate of community-based education, said "Greenbrier County has Eastern and Western Greenbrier Middle Schools. Western has 400 students and Eastern has 800-900 students."

"Teachers tell me that Western is a good model (size and enrollment) and Eastern is too large, students get lost in large consolidated schools," he said, saying distance learning and technology lends to place-based education.

Jay Cole says he expects the 2007 legislative session to center on education. "The School Aid Formula will be a big part of that discussion," he said.

"Anecdote is not the plural of data," he said, indicating education decisions need to be made with good research and facts, "The School Aid Formula is complex and we need data to change it and provide an equal education."

Del. Larry Williams, an advocate of place-based education, has been a leader in the Legislature to "turn the tide" against school consolidation. He was recognized for his community education efforts with a special presentation during the conference.

Responding to questions, Sen. Plymale, who was the only legislator to serve on the No Child Left Behind task force, said, "NCLB is the race to mediocrity, the highest level we've decided to reach is mediocre," saying it is important to give teachers the tools to enhance performance.

"We've been working on some things such as the teacher shortage in the Eastern Panhandle, getting qualified math and science teachers into rural counties," Plymale said, indicating he doesn't know if he agrees with economies of scale.

"With a position now open on the SBA, it gives a new way to assure the SBA is not the same it's been in the past, with different priorities." - First Lady Gayle Manchin.

Citing Cabell County, Plymale said they have created some mega schools. "I don't agree with it. I don't think it's right and I don't think SBA money should be spent on it."

He said rapidly improved technology during the past five years has helped maintain community schools, saying we need a broadband initiative that would reach every nook and cranny in the state.

Plymale lamented that West Virginia’s assessors are not assessing at the constitutional level of 60 percent. "Shame on them," he said, indicating their failure to follow the law impacts public education.

Martin said corporations own 51 percent of the land in West Virginia and 76 percent of the minerals, but regular property owners pay 84 percent of the taxes.

"The Legislature, lobbied by the corporations, placed a 4 percent cap per year on what taxes they would have to pay.”

Martin says, "Schools belong to us, our communities, not an educational bureaucracy. We know that the smaller the schools, the higher the achievement."

She said citizens and taxpayers need to stand up as voice for a democratic society for the place they stand on the earth. While catchy phrases may impress people and have some purpose, "Globalized students are citizens of nowhere."

Revising the state aid formula to help rural students should be a major priority of the legislature, she said.

Martin expressed appreciation to the panel for their contribution to the discussion.

Reprinted with permission of the Hur Herald, http://www.hurherald.com. This article originally appeared in the Nov. 4, 2006, edition of the publication.

 

 

The Legislature is published by the West Virginia School Boards Association. It provides county board of education members, state policymakers, school administrators and the education community information and opinions regarding West Virginia legislative issues. The views expressed in this publication do not necessarily reflect official opinion or policies of the WVSBA, unless specifically stated.

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