The agenda of tomorrow’s closed session by the West Bend School Board has a few interesting items like this one:

3. Pursuant to Wis. Stats. 19.85(1)(f) to consider financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration of specific personnel problems or the investigation of charges against specific persons, which, if discussed in public, would be likely to have substantial adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations, and take any such action, if necessary, based on its discussion namely: Initial review of results of exit surveys received from former central office administrators.

Also, in response to the potentially illegal and certainly intemperate actions by the board lately, former School Board President Rick Parks sent them this letter (subject to open records) urging them to slow down, allow public input, and follow normal board good governance protocols. He also makes the extremely valid point that as board members circumvent the normal hiring process and become active hiring managers, they are exposing themselves to some substantial personal liability for possibly violating hiring ethical standards and laws.

To:               West Bend School Board Members

From:           Rick Parks

Date:            July 30, 2017

Re:               Board Member Responsibilities in Hiring

It was not my intent to pepper you with unsolicited advice after my “retirement” from public life.  Public bodies make their own path, and at the end of the day, things usually work out.

But I do feel an obligation to the community, and to individual board members, to point out some areas to watch as you move up the level of board involvement in individual employee hiring decisions.

Based on the public statements I’ve seen, and the manner in which announcements have been made, it appears that the board has taken the lead on how administrative positions are organized and has even gone on to in effect become the “hiring manager” for filling some positions.  While directing organizational structures is not unusual for school boards, with the proper community discussion and vetting, moving on to decide which individuals will fill these roles, rather than the traditional process of ratifying selections that have been advanced by the administrator, is quite unusual.  It may be unique. This also exposes the district, the board as a whole and individual members to risks that may not be fully understood or contemplated.

My business conducts employment law refresher training about every two years for all of our Supervisors, Managers and Executives.  We just had one last week, conducted by a partner from Quarles & Brady, who has also been the employment law resource for the school district.  I thought I’d give you the benefit of some observations I made in the update that are relevant to your current process at the schools.

“Hiring Managers” take on a significant liability for their organization, and in some cases, personally.  When the board moves to making these decisions they must understand and follow proper hiring practices.  When the board acts in a governance manner, by setting expectations that administrators follow all best practices in screening and selecting candidates, there is some defense that flaws in a hiring process fell outside the scope of how an administrator was expected to conduct the process. This could minimize or deflect liability if things don’t go well.  This almost certainly relieves a board member from personal liability for their decision.  By becoming a hiring manager you take on the full risk as a body and perhaps even individually.

As a hiring manager I’ll offer some freshly reinforced best practices each member of the board ought to observe:

• All positions should be posted internally before being filled. In the case of the newly organized and established dual high school principal positions, you appear to have skipped over this requirement, which is troublesome.  While it might seem that posting for one principal for both high schools suffices, I would suggest it does not.  The feedback at the last board meeting revealed concerns and disappointment on this.  Why is posting so important?  Currently in employment law failure to post is a leading reason for successful discrimination lawsuits.  You expose the district and yourselves to risk when you do not do this.

• When acting as a hiring manager each of you are responsible for conducting due diligence on individuals you intend to hire. This would include as a minimum:
  • Reviewing a comprehensive background check
  • Reviewing the work history and professional qualifications of each candidate, which for current district employees should involve your own review of their personnel file
  • Conducting an interview with all candidates

• Excusing yourself from a hiring process if you have a personal relationship with a candidate. In tort law this is a broader standard than the current district ethics policy or even state statutes on conflict of interest.  It could include friendships that might promote favoritism in the hiring process.

None of this is an issue of course unless someone begrudges your hiring process and then takes the next step of pursuing litigation.  Unfortunately we’ve already seen some rumbles of resentment on the process of hiring high school principals, which could set the stage.

As a public board you also face the court of public opinion, even if events don’t move to litigation.  If the board takes on the additional responsibility of being a hiring manager, and skips over the required due diligence, the public relations impact of not properly vetting background checks (with even innocent flaws) or work history would be painful.  And we should never take comfort that information such as this would not publicly surface due to its confidential nature.  At this point there are many people formerly associated with the district that have deep knowledge about any internal candidate the board might advance as a hiring manager.  It would be naïve to think that the rumor mill would not advance any issues that may have been missed by lack of proper due diligence.  This would harm the credibility of the board and any candidates that might have flaws in their record.  Since some members of the current board have placed a focus on using ethical hiring processes a slip here would be especially damning.

Some parts of a best practices hiring process for the high school principal positions are behind you now and can’t be implemented.  It’s too late to post positions and go through a formal vetting and hiring process.  Realistically it’s also too late to interview candidates.  But the remaining due diligence is available to you all and I highly suggest you do the following:

• Personally review background checks for each designee. Don’t delegate this.
• Review the personnel file for each candidate.
• If you have a personal relationship with any candidate, excuse yourself from the vote to approve their contract.

If all board members go through these processes and are comfortable with what they review, the routine process of approving contracts in the consent agenda on August 14^th would be completely appropriate.  On the other hand, if even one board member has reservations based on their due diligence review, it would be appropriate to pull out these contract approvals and vote on them separately from the consent agenda.  This would allow that member(s) to be on record as not supporting the process and offer them some legal protection, and also some protection in the court of public opinion.

In open session this of course could not involve a discussion of why a contract was being approved or not approved, but all contract offers do contain the disclaimer that they are subject to board approval.  I don’t believe there would be exposure to liability for an individual board member, or the board as a whole, if a contract that had been offered were not approved.  This should have been part of any written offer.

While my professional life puts me in a position of interacting with attorneys that work directly for my company and are hired for specific purposes (including employment law) on an almost daily basis, I am not an attorney and can’t offer legal advice.  This is decidedly a friendly “heads up.”  Any board member that wishes to interact with the district corporate counsel for legal advice involving their board service is always free to do so.  If you have questions or concerns about what I’ve shared here I encourage you to do just that.  As for the court of public opinion, I did live with that for six years and have some understanding of how things work there.  It can be brutal.

Rick Parks