Prayer Vote: Legal
By Alex Saitta
March 10, 2013
March 14 Update:
The board received the attorney opinion on this and that opinion states the board followed policy and law.
Excerpt from the opinion: "Since the amendment of Policy BE was not initiated in writing by any board member, individuals or groups of citizens, students or employees, no reference to the policy committee is required... In conclusion the Board complied with Policy BG/ BGD..."
This finding doesn't surprise me, as I explained that was likely to be the finding, and I had highlighted that reasoning below in item 1.
At the January meeting of the Pickens County School Board the board voted to ask the administration to draft a policy for a non-sectarian prayer at the start of board meetings. The Superintendent did that and at the February meeting the board reviewed the draft and approved it in first reading.
At the February vote, Jim Shelton objected because he said the board did not follow the procedure for changing policies. In the Feb 27 edition of the Pickens County Courier he was quoted saying, “According to our policy it says that proposal for new, deletions of or changes existing policies, which this does, has to be sent to the policy committee [first]. What we’ve done is not referred this to the policy committee.”
At the meeting and in the article I disagreed with him saying the board was following the rules when it came to changing an existing policy. In the article and Shelton responded, “Saitta is wrong.”
Obviously we had a disagreement about whether or not the board was following the rules/ law, so I asked the attorney write us an opinion on whether or not the board did anything wrong. We’ll get that attorney opinion shortly. In my opinion, the board followed the proper procedure in creating the policy, and Mr. Shelton mis-read the procedure that outlines how polices are to be created, changed or deleted.
My Point Of View:
At the February meeting, first, there was a lot of disagreement between Shelton and Judy Edwards whether or not the policy was new or being changed. That doesn’t matter because the procedure is the same for adding a policy, deleting one or changing a policy. To clarify, this was a change to an existing policy. The board is adding a few paragraphs to the existing policy BE — School Board Meetings.
In the article, Shelton said the motion was “to ask legal council to draft a policy”. That isn’t what the motion was. The motion was to “direct the administration to work with legal counsel to develop a policy.”
Again, it doesn’t matter who the board directed to draw up the policy change. My point is Shelton may not have been listening closely as he should have.
The heart of Shelton’s argument was new policies, deletions or changes have to first go to the policy committee. His quote in the article was, “According to our policy [Policy BG: School Board Policy Process] proposals for new, deletions of or change to existing policies, which this does, has to be sent to policy committee.”
I disagree and I’ll explain why.
Policy BG: School Board Policy Process clearly outlines how new policies are to be created, policies deleted or policies are to be changed. In the article, Shelton zeroed in on this sentence of the policy -- “Proposals for new, deletions of or changes to existing policies may be initiated in writing by any board member, individuals or group of citizens, students or employees. The policy proposals will be referred to the superintendent or given to a board member and then sent to the policy committee for study prior to board presentation for discussion.”
There are four ways for a policy to be suggested:
1) A board member, a community member, students or employees can suggest a policy. Those suggestions, as that sentence of the policy states, must be given to the Superintendent and be vetted by the policy committee. The reason for this clause is to give those outside the board or administration a chance to suggest a new policy, a change or a deletion. It strengthens our democracy. Also having such suggestions go through the Superintendent and the policy committee before they could get to the board will insure the board isn’t overwhelmed with such suggestions.
Shelton incorrectly jumped to the conclusion ALL policy changes and deletions or new policies must go to the committee. No, only those recommended by an individual board member, someone from the community, students or employees have to go through the committee.
2) The second way to create a new policy, delete or change one is the Superintendent can directly propose one to the board.
The Superintendent’s authority to do this is written in the next paragraph of policy BE — “The superintendent, his/her designee or the policy committee will be responsible for developing written policy proposals for further deliberation and/or action by the board.”
If Dr. Pew wants to create a policy and send it directly to the entire board for consideration, this paragraph gives her the power to do that. She doesn’t have to go through the policy committee. This is what happens most of the time and the Superintendent has had this authority ever since I’ve been on the board.
In the meeting where Shelton said all new policies, changes and deletions must go to committee, there were two other policies on the agenda the Superintendent formulated and sent directly to the board, and never went through the policy committee. Again, I don’t know how closely he was paying attention.
3) The third way a policy can be created, deleted or changed is by board—committee-board action. The board as a whole can send to the policy committee an idea to create a new policy, change or delete one. There the committee will work on what the board ordered. Once the draft is completed, the committee will send it back to the board for consideration/ approval.
There is no wording in policy BE that gives the board power to do this. This power is given to the board in state law 59-19-90, which states the board of trustees shall: “Promulgate rules and regulations”. In a sense, the board is born with this authority. Such authority doesn’t need to be written into a school board policy.
In contrast, under law the Superintendent doesn’t have such power when it comes to policies, so the board has to give it to him/her via policy. Employees, citizens or students don’t have the power to suggest a new policy, deletion or change, so the board has to delegate it to them via policy. Both of those are in policy BE has I highlighted above.
4) The final way a policy can be created, changed or deleted is the full board can order anyone (the Superintendent, the administration, the lawyer, John Q. Public) to draft a new policy, or a change or a policy deletion. Again, the board has that power under state law, so that doesn’t need to be written in policy BE.
Viewing the tape, at the February meeting the board clearly orders the Superintendent to draft a policy. That is well within the state law and doesn’t violate anything in policy BE despite what Mr. Shelton said at the meeting and in the article. This is the point Shelton is missing and I believe the attorney will confirm this. The board used method 4 to make the policy change for the non-sectarian prayer.
Under state law, the authority to oversee and manage our schools is in the hands of the school board. The first line of title 59, chapter 19 — School Board Trustees — states school districts shall be under the management of the board of trustees. The district Superintendent is hardly mentioned in the state law and has next to no power under title 59.
The school districts never liked this, so with help of organizations like the South Carolina School Board Association (SCSBA), they’ve convinced the boards around the state to delegate all sorts of power to the superintendents and their administrations. The SCSBA always suggests changes to policies via “model” policies they send to school boards all over the state. Their angle, in my opinion, is to get board to delegate more and more authority from the boards to the administration.
For example, I showed you the state law says the board creates the policies and rules. Not the Superintendent. Yet for years all the policy creation came from the administration. Why? Starting with Jim Shelton’s term as chairman and continuing with mine, the board took back some of this policy creation authority. A policy committee of three board members was created. This gave the board a mechanism to formulate its own policy ideas, changes and deletions by sending those ideas to the policy committee.
Policy BG was re-written when I was the chairman of the policy committee. The philosophy during the rewrite was what it was throughout my entire term as policy chairman — do not limit the board’s authority, and take back some of the authority boards of the past over-delegated to the administration.
Thus, when Shelton said the prayer policy change had to go to committee (a powerful restriction) I questioned it. Again, the philosophy was not to shackle the board with such restrictions, but to eliminate restrictions where they didn’t belong.
Reminds Me Of:
In the summer when the board voted in one reading to use $13 million of surplus interest to pay down some of the bond debt, Shelton complained we didn’t follow policy then either. That time he said three readings were required. I said the law didn’t require three readings. An article was written in the newspaper detailing our opposing viewpoints, and I requested an attorney opinion to settle the issue.
The attorney found Shelton’s claim lacked merit. According to Act 152, three readings are required for large expenditures from the general fund. The attorney said the three reading rule did not apply because paying down debt is not an expenditure, nor was the money coming from the general fund. It came out of the building fund.
I wrote about Shelton’s unfounded claim and my point of view on it here