STATEMENT OF WILLIAM H. WENMARK

Madam Chair, considering the magnitude of this issue and the hours of legal research that has been done, I will significantly limit my written/oral comments for the record. There is much that is laudable in the proposed School Board Operating Principles –as many these principles are copied from our current School District’s Vision and Strategic Plan. At the heart of this proposal, however, is not so much the restatement of these principles but rather the establishment of rules in the guise of principles.

Because this document ultimately restricts the right and obligation of every School Board Member to carry out the duties of our elective office according to the constitutional oath taken by every Board Member, I must respectfully oppose this document. The oath of office taken by School Board Members is prescribed by Minn. Stat. §358.05, as the oath in the Minnesota Constitution, Article V, Section 6. That oath requires all of us to “support the Constitution of the United States and of this State and to discharge faithfully the duties of his office to the best of his judgment and ability.” The oath requirement to discharge duties in the best judgment of the Board Member constitutionally prohibits our School Board from entering into an agreement that restricts the statutory and constitutional duties and obligations of each Board Member. School boards have been described by the Minnesota Supreme Court in Frisk v. Board of Education as part of the executive department, but exercising more than merely administrative functions. A school board has powers of a legislative character and, at times, powers of a quasi-judicial character when it passes upon discharge or demotion issues.

The proposed operating principles establish a “team.” The team concept is currently in vogue as a method of getting business employees to work toward a defined goal. But the “team” model is inapplicable to the policy making functions of a School Board – which is its legislative function. Each of us on this School Board was elected by the voters in this District according to the principles of representative government. Each Board Member took an oath of office to carry out these legislative functions to the best of our ability and judgment. Many issues that come before a School Board are non-controversial, or if controversial, result in unanimity of decision making because of the give and take debate processes of this body, which in my opinion has been seriously eroded. But ultimately no member in a minority position can or should be asked to cede their independence and constitutional duties because of the decision of the majority. Rather, it is the right of any Board Member in the minority, if they make the judgment that the majority’s decision is wrong, to work through all legal and political means to reverse or change that policy. That might even include, in extreme cases, opposing other members of the School Board at election time or supporting their opponent. That constitutional right is contrary to the “team” concept of these proposed operating principles. Proposed Operating Principle No. 4 states that “we will not always agree and commit ourselves to accepting the decision of the majority of the Board on all decisions.” We cannot make that commitment.

An elected Board Member should not be required to abandon his/her constitutional right to publicize a disagreement with majority decisions and to seek through all appropriate political and legal means a change in that policy. The foundation of free speech is the core belief that through the free, unrestricted exchange of ideas, the voters and elected officials can weigh those competing ideas and make decisions, or change those decisions. We value the free marketplace of ideas, including the right of advocacy, to such a great extent that it is enshrined as the First Amendment to the United States Constitution and the third section in Minnesota’s Bill of Rights. Interestingly, the first two sections of Minnesota’s Bill of Rights also speak to this issue. Section 1 provides that: “Government is instituted for the security, benefit and protection of the people, in whom all political power is inherent, together with the right to alter, modify or reform government whenever required by the public good.” The second section of the Minnesota Bill of Rights provides that no member of this state shall be disenfranchised. Taken together, these two sections establish the principle that government power flows from the people, by their elective vote, and it is the duty of those elected in a representative government to exercise their independent judgment to the best of their ability. In the upcoming election we have a chance to move to this higher level of function. We cannot, therefore, bind ourselves to mutely support a majority position when we vehemently disagree, as is in the case of the proposed operating principles The majority in a democracy establishes policy and action through its decision making. But the Constitution enshrines and protects the rights of a minority to oppose, and to change, majority positions. We know from experience that a minority position may someday be adopted by a majority of a governing body.

 It is often stated that free speech and political advocacy can be loud, messy and contentious. While we can dedicate ourselves to courteous and cordial debate and respect for each other, we cannot enshrine ideals as rules without running afoul of the right of free speech. Minn. Stat. §123B.09, Subd. 7, empowers a School Board to make, change or repeal rules relating to the organization and management of the Board and the duties of its officers. This legislative authority does not, however, authorize a Board to adopt proposed operating principles that limit or deny the constitutional rights and duties of its members. Let me give you an example. Proposed Operating Principle No. 7 requires each Board Member to commit “to allow only the Board Chair to answer emails and Board correspondence and other public communications.” No individual Board Member has the right to represent their individual position as the position of the Board. But that individual Board Member has a constitutional right to communicate their position and why they disagree with the position of the Board, if the Board Member differs from a majority of the Board. Elected Board Members cannot commit themselves to a “consistent message in support of the District,” as set forth in Proposed Operating Principle No. 6, in all instances. The oath of office requires each Board Member to exercise their judgment as they deem appropriate, and to advocate for positions that Board Member feels are warranted. Sometimes, that judgment may lead a Board Member to oppose what the District is doing and as a result they must not abrogate nor sign away their right to communicate with the public by what ever means necessary that opposition.

Proposed Operating Principle No. 6 further states that a Board Member is required to share all emails with the rest of the Board. While in most instances that could be appropriate, there may well be individual circumstances in which the Board Member is asked to protect the identity of the author of a communication or the content of a communication. Requiring Board Members to share all emails and communications in those circumstances will have a chilling effect on members of the public or School District employees who want to raise issues or concerns with a single Board Member in anonymity. Proposed Operating Principle No. 5, while entitled “Open Communication,” is designed to limit the ability of Board Members to criticize the performance of individuals in the District in public meetings, and to face sanctions for sharing “private and confidential data.” The Government Data Practices Act and open meeting laws are subject to varying interpretations. Enshrining those statutes as part of these rules that allows a Board Member to be sanctioned by his peers is inappropriate, and has a chilling effect on the right of Board Members to make good faith decisions, and seek legal advice on how to handle data appropriately.

Proposed Operating Principle No. 7, entitled “Interactiveness Within the Team” provides that each “team member” is accountable to the team for his or her actions. Our duties as Board Members are to represent and utilize our best judgment, not to manage or monitor the conduct of other Board Members. While we may be troubled by those who are not courteous, who do not follow appropriate procedures, or who are contentious or controversial, we must also recognize that the Constitution requires that individual to use their best judgment. Ultimately it is for the voters to determine whether the conduct of a Board Member is disruptive or inappropriate to the processes of the School Board, not other Board Members to police and micromanage these types of actions. Proposed Operating Principle No. 7, on its face seeks to promote harmony among Board Members, but in practice may create circumstances in which those who disagree with others on an issue are branded as non-team players, when all they are doing is exercising their constitutional obligations. Proposed Operating Principle No. 8 is unduly vague and cedes power to the Superintendent, a non-elected position. While the Superintendent should have input into agenda items, the current proposal seemingly gives the Superintendent an equal voice with the Chair and Vice Chair, and remains ambiguous as to whether Members have a right to put other items on the agenda that are not included by the Chair or Vice Chair. Similarly, setting an artificial deadline for all matters, and having a policy against “surprises” makes no provision for those items which arise at the last minute and should be considered by the Board at the earliest possible time. The closing paragraphs of this document include a provision that the Principles cannot be amended during the course of the year, while in fact the majority should always have the ability to change operating rules under Minn. Stat. §123B.09, Subd. 7. That Statute allows the Board to make and when advisable change or appeal the rules, and does not allow them to be adopted and amended only on an annual basis. Finally Madam Chair, both Mr. Eaton and I have met with you to give you this advice and our counsel. We have provided you and the other board members with extensive legal research and advice. I have personally offered a version of these principles (attached) prepared with counsel which, in my opinion, does not breach the law or our responsibilities and completely removes the punitive nature of this document. The Board has chosen not to take my recommendations into consideration which is your prerogative. Nonetheless, I have consulted the Minnesota School Boards Association and their legal counsel who have concluded there are additional serious concerns for this document in principles #1 and #3 which in their opinion potentially expose each member to personal and district liability. Your comment to Mr. Eaton and me that counsel to the District has review these principles should in no way provide comfort to each of us individually. The counsel to the District represents the district…not each of us personally to which our service is under oath. I trust that each and every member on this board has retained legal counsel as both Mr. Eaton and I have done. Both Mr. Eaton and I are very familiar with contract law through our legal counsel as it is essential to operate the many companies we both own. In closing, I want to site a passage in the new preamble adopted tonight. “We will support and expect everyone to advocate for what is best for our children, our schools and our communities without fear of repercussion” This is precisely the reason I reiterate my initial comment that these are unacceptable rules masquerading as Operating Principles. These principles are contained in the great work of our Vision, Strategic Plan, and other initiatives we have work so hard to develop. To relegate our great work to be used in this punitive way is, in my opinion, shameful. Each Board Member has taken an oath of office to both support the Constitution and to utilize their best judgment. We cannot bind ourselves by agreement or rule making, whichever this is, to limit our right to dissent, to seek change, and to carry out our constitutional duties and obligations to those who elected us to utilize our best judgment. Equally, and consistently with this you do not have the right as the majority to bind any board member to an agreement against our will and counsel, or hold us in contempt of that same right. On behalf of all of us as Board Members, I move to table this item and call for a roll call vote.

DRAFT Revised August 8th/whw

Minnetonka Public Schools
 where dreams set sail
Minnetonka Board of Education

We commit our public service to our Vision and Strategic Plan for Minnetonka Public Schools and our Greater Community. As elected representatives of the public at large we individually commit ourselves to our responsibilities as set for by the Minnesota State Constitution and the laws that govern our responsibilities and actions as School Board Members. Conducting the Business of Public Education in Minnetonka We conduct our meetings and study sessions in an open and orderly fashion.

• The Board Chair will conduct the meeting so that the Board may complete its work in an efficient and timely manner.
• Board meetings should not exceed three hours.
• Board meeting agendas are developed cooperatively between the Board Chair, Vice-chair, and the Superintendent. Precedence and priority are given to those items related to the strategic plan and the District’s Vision and Mission.
• Board meeting agendas are open to the Pubic.
• Board members will be prepared for meetings.
• Any prepared agenda changes will be mutually determined by the Board Chair, Vice-chair, and the Superintendent before the meeting.
• All Board members shall have an opportunity to accept or reject changes.
• Agenda deadline is 4:00 pm Monday for new items to be considered for any Thursday meeting.
• Deference will be given in setting time limits for agenda items.
• Information upon which decisions are to be made is publicized prior to decision-making meetings in adequate time for free discussion.
• Any member of the public wishing to have an agenda item considered by the Board should contact the Board Chair to begin the process of consideration.
• The Board invites community input at the beginning of each regularly scheduled meeting. o Community Comments occurs at the beginning of each regular meeting and is an opportunity for the public to address the Board on a topic included on that meeting’s agenda.

o Citizen Feedback is offered at the end of each Study Session and is an opportunity for the public to address the Board on any particular area of concern.
• Regular meetings of the Board will be video recorded and offered to local cable operators for broadcast.
• We will endorse open communication with the public. In concurrence with public meeting laws, the Board Chair will answer emails and board correspondence and issue public communications related to exiting policy and position of the School District.
• Board members reserve the right to respond individually when it is determined that this communication is desired by a member. Great deference will be given by a member to the Chair on issues of Public Policy, Governance, or Media Communications.
• Board members, when appropriate, will share his or her individual response with fellow board members in a timely manner to ensure a mutual understanding of issues in the community.
• Board members will give great deference to Operational and Administrative questions and direct them to the Superintendent for resolution. Planning, Goal-setting and Accountability
• As a group we will set goals for the actions and achievements of the Board, the District, and the Superintendent.
• We will perform annual self-evaluations of the Board and the Superintendent to measure effectiveness in reaching District goals.
• We will be advocates for each team member’s individual area of strength and experience.
• We will hold the Superintendent and administration accountable for achieving the District’s goals and progress towards the Vision and Mission.

Read aloud by William H. Wenmark to the Minnetonka School Board at their public meeting on October 6, 2005. 
This document was obtained with other public documents by TonkaFocus members who attended the meeting.