1. It has been well established that a governing board cannot "change its mind" or reverse a decision made previously. It has also been legally accepted that a board "speaks through the minutes" and that minutes become official only after they have been transcribed and approved by the board at an official meeting. A situation that commonly occurs is that when action has been taken and approved at a previous meeting that action comes into question at a subsequent meeting where the board member states that the motion made was misinterpreted and therefore was transcribed incorrectly. After lengthy discussion, the board votes to change its stance relative to a contract that appeared to be a "done deal" the meeting before. The vendor is upset because he had already made plans to fulfill the terms of what he believed was an agreement. The vendor feels that he was wronged and accused the board of changing its mind. Does the vendor have a valid point concerning this issue? How would you advise the board in this situation?

In this case, the board took a course of action at a meeting that led a vendor to believe that he would receive a contract. The vendor acted on the implication that the board had already decided to make their decision official. It appears that the board was prepared, at the first meeting, to make the decision official. However, during the next meeting, it was indicated by a board member that the minutes had been transcribed incorrectly and that the board member had not indicated what was represented in the minutes. After further discussion, the board decided to amend the minutes and change its stance on the action based on the fact that the minutes were recorded incorrectly. The board voted to correct the minutes to reflect what actually took place at the initial board meeting.

First, a crucial question is what was done at the previous board meeting. Courts have upheld the notion that the only legal evidence of what has been done at board meetings is the official record (Lewis Vs. Board of Education (Ky.), 348 SW (2^nd) 921 (1961)). Therefore, what is reflected in the minutes of the meeting is binding as long as it is an accurate record of what has happened during that meeting. Conover vs. Board of Education (1954) addresses what is a public writing in determining the record available to the public. This case involves the refusal to provide meeting notes to citizens who, the day after the meeting, asked for them. The refusal was based on the fact that the notes had not yet been transcribed. Upholding the clerk's action, the court indicated that a clerk's notes, which have not yet been transcribed, are not a public writing. However, once they have been transcribed, although they have not yet been approved, they are considered a public writing. Further, is was indicated that minutes can be changed to speak accurately of what happened at the meeting in question but may not reflect a change of mind of a board member.

Second, can the record from a previous meeting be changed at a later date? Minutes may be accepted during a subsequent meeting of the board after they have been read and distributed. At this time, questions may arise as to the accuracy of the transcribed minutes of the previous meeting. As a rule of law, the minutes may be changed to correct information that was inaccurately recorded but may not be changed to reflect a change in mind of the board or a member. This is important because the only evidence of the actions taken by the board are the transcribed minutes which become the record.

Finally, Noxubee Co. Vs. Long (1925) provided that minutes will be given leniency in how they are organized as long as the meaning of them may be interpreted. Therefore, the court does not dictate how minutes should be drawn up but rather mandates that they are clear enough to ascertain their meaning. I believe the vendor has a valid point concerning the issue of receiving the indication that he would receive the contract during the previous meeting. His legal stance is based upon the fact that the record, although not yet accepted by the board, showed evidence that he had been chosen to receive the contract. However, the evidence of record may indicate differently if those records are edited to reflect changes. Since it is considered appropriate by the courts for the board to edit records of meetings based on information that is incorrectly transcribed, it is acceptable that the evidence of what occurred during that meeting (manifested in the record) be changed. Therefore, I believe that the board is within its rights to deny the contract to the vendor provided the change of record was a result of simply an error in transcription rather than a change in the mind of the board.

 

 

 

 

 

2. THE FOLLOWING IS A TRUE STORY THAT HAS HAPPEDED REPEATEDLY. A principal has hired a teacher for the upcoming year. The contract was signed by the teacher but was still waiting for the official board meeting in two weeks. Being reassured that the board's approval was a formality, the teacher began working in her room and preparing for the upcoming year. Two weeks later, the board met and voted not to offer the teacher a contract. When informed of the decision, the teacher threatened to hire a lawyer and sue the district for breach of contract. How would you advise the board?

The facts of this case indicate that a principal and a prospective employee have discussed a job to be given to the individual. The indication is that the principal had chosen this individual and has told her that she will be recommended to the board for approval. It has also been insinuated that the board approval is simply a formality and, in all likelihood, they will approve the position. Based upon this belief, the teacher begins work in her room getting ready for the upcoming year. When the board holds its next meeting, it votes not to hire this individual. The major issue is whether or not a principal can act for the state in an official manner.

According to the courts, the answer to this question is no. Eddy vs. Omaha (1962) indicates that all recommendations should be channeled through the board of education for final approval and action. This indicates that the decision is not legally considered official until final approval is granted by the board serving in its capacity to represent the institution. Additionally, the contract is not signed by the board indicating acceptance by both parties of the contract. In the case Kinney vs. Howard (1907) it is indicated that where an act involves judgment or discretion, it cannot be delegated to any agent or committee. This further supports the premise that the principal has no legal authority to hire an individual but can only make recommendations to a board. Furthermore, in the case Silverman v. University of Colorado, the court held that a board may ratify the act of an administrator, thus converting the unauthorized act into an authorized one. This court further indicated that the teacher must prove that the act has been ratified in order to prevail.

Finally, if there were a suit against the school, it would not be successful against the board. The board has not agreed to hire the individual and has acted well within their rights in choosing not to hire her. What happened between the board and the individual who was possibly to be hired was unknown to the board members and therefore, they are not responsible directly for that decision. However, if the principal indicated to the individual who believed she would be hired, that the decision was official, and suggested or allowed her to begin working in the capacity which was to be officially decided at the next board meeting, he may not be protected from liability. This may involve the board indirectly in gaining control over the situation within their district by providing policies to reduce these conflicts in the future. Therefore, in answering the question: "How would you advise the board?," I would indicate that they were within the law with regard to deciding not to hire the individual but would caution them in handling the situation in that they are at least partially, although indirectly, responsible for their principal who may have acted in error in promising the job to the individual.

 

3. A parent discovers that his son is meeting with a counselor on a regular basis. He suspects that the issues being discussed are those of drug use. He is also convinced that confidential family information is being disclosed to the counselor. The parent feels that this information is being disclosed to others and has the potential of damaging the reputation of the family business. Another concern of the parent is that of his son. He feels he needs the information to help his child. When confronted by the parent, the counselor refuses to provide any information concerning the sessions. The parent states that the notes taken by the counselor are given to the secretary for filing, notes are not secured under lock and key, and parts of the folder are shared with a teacher who instructs his son. This, according to the parent, constitutes a breach of confidence and therefore negates the confidentiality argument used by the counselor. What is your response to the counselor?

This situation involves a parent who discovers his son is meeting with the counselor. The parent suspects the discussion involves drug use and other information damaging the reputation of the family business and that this information is being discussed with others in the school system. The parent is concerned about his son and wants to attempt to help him. Upon asking the counselor for the information concerning his son, the parent is refused access to that information. The parent then suggests that the information has been shared with another teacher and this indicates a breach of confidence. The issue is whether or not a parent may have access to his sons records.

In dealing with the question, does the parent have a right to view his sons records, I believe he does. The case Valentine v. Independent School District indicates that when notes are placed in the student's personnel record they become part of the record. This case further suggests that records are not the property of employees or the district since they were public records. This indicates that the parent has a right to view such records of his son.

To deal with the rights of the parent to inspect student records, one must look at the Family Education Rights and Privacy Act (FERPA). FERPA indicates that each school district is required to publish a pupil records policy. This policy must protect the student's privacy. FERPA also stipulates that parents and guardians have a right to inspect all student records concerning their child. This indicates that parents have a right to files on their students. It is further mandated by FERPA that parents have the right to appeal anything in the student's file that is considered incorrect. In order to realize this right, the parent must have access to the student's record. Finally, personal notes which are not accessible to other school staff members may be exempted from student or parental access. However, since the indication is that, in this case, that information was made available to another student and the secretary, the assumption is that it is part of the student's record.

The suggestion that if a teacher being allowed part of the student's record constitutes a breach of confidence is questionable. Guidance counselors are one party that is involved in the release of student records to others within the district. However, information should not be conveyed to others unless the motive is to assist educational opportunities. This indicates that in some situations, it may be acceptable to release specific information to other teachers. An important question then becomes whether or not this information is released to the teacher in order to enhance educational opportunities. Thus, as an extension to the previous question, it is important to determine if the teacher was given access to the entire student record or simply part of it, which may influence the student's educational success in the class.

Finally, as a rule of law, one must balance the right to privacy against one's right to know. The right to privacy is the legally protected right of an individual to be free from unwarranted publicity. The right to know is the right to become maximally informed. In achieving this balance, a person's privacy must be maintained when it does not inhibit the right to know of a person who had the right to become maximally informed. The indication that this parent wants to help his child as well as help his family's reputation indicates, to me, a right to know. Therefore, I believe the parent has a legal right to his child's records and that this right is upheld by FERPA.

 

 

 

 

 

 

 

 

 

4. Draft a policy that attempts to protect counselors from litigation that may occur in the future concerning issues found in scenario #3.

In order to draft a policy to protect counselors in situations in which parents seek information obtained on their children, I believe it is imperative to adhere closely with the guidelines established in the Family Education Rights and Privacy Act (FERPA). Following these guidelines is an important step in protecting the actions of everyone involved in such a situation, including the counselor. FERPA establishes standards to which school districts must adhere in handling students' records. The requirements of the act are as follows. Records must be kept confidential and cannot be released without consent of the parent (or student if over the age of 18). Parents and guardians have a right to inspect all school records concerning that student. The record-keeping system must allow parents to locate their child's records. The staff who have access to student records must be identified by title. Each file must include a record indicating who has accessed it. Parents have a right to appeal anything, and if the school is unwilling to change what is contested, parents may request a hearing or provide a written statement to be attached to the challenged material. The school must define what is directory information and under what circumstances that information may be released without parental consent. Records maintained by professionals or paraprofessionals used in the treatment of a student over 18 years old (or any student in an institution of post-secondary education) are excluded from the definition of "education records" in FERPA and are not automatically accessible. Finally, personal notes and information that is not accessible to other school staff members are exempted from student or parental access.

As a result of the stipulations set forth by FERPA, I believe that a sufficient policy is one that suggests that counselors know and follow the FERPA guidelines. This will entail carefully abiding by each of the stated stipulations in the previous paragraph. Furthermore, it is suggested that information the counselor feels is necessary to keep in confidence from the parent and the teacher be kept as personal notes rather than be attached to the personal record of the student. Furthermore, this information must be kept secure in that no one may be able to gain access to it except the one initially writing these notes. Finally, this information must never be released to anyone in this institution even if the intent is to facilitate enhanced educational opportunities for the student. The release of this information to another professional in the district, even if it is deemed necessary, may involve a legal right of the parent and student to view that record.

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