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Advice Regarding Public Entity Board Leadership

Thursday, 9 June 2016

by Brady Brammer, JD MPA

1. Negotiating Complex Board Dynamics

Practically speaking, negotiating complex board dynamics is difficult. Generally, it requires great emphasis on civility between the board members. The attorney and the presiding official should work together to develop and encourage behaviors and norms. Additionally, the presiding official needs clear boundaries from the attorney as to what actions (s)he legally can or cannot take.

When board members lack civility and attack one another, it is more likely that the public will (1) believe the attacks, and (2) engage in the same kind of attack. Lawyers have rules of civility that encourage members not to “attribute bad motives or improper conduct to other counsel,” recognizing that such accusations bring the entire legal profession into disrepute. The same could be said for board members.

While emphasizing civility, it is important that board members understand and appreciate their role to discuss, disagree, and debate policy issues. Board members need to know that they will be listened to by other board members. They also need to know that they should listen to other board members. Additionally, they need to know that they can disagree and be disagreed with as long as they do so with collegiality and respect. This process requires encouraging and supporting development of personal relationships between board members and other stakeholders.

One method to address “hot” issues that board members will likely have disagreements over is to hold “work sessions” to allow board members to address and understand issues prior to voting on the issue. These have several advantages. First, although such work sessions are typically public, they are generally not well attended. Thus, board members may be able to air their grievances in a more discrete forum. Second, the work session may provide an opportunity to narrow the issues that would serve as points of debate. Third, the work session may result in proposed solutions and guidance for additional staff research on previously unknown but relevant data prior to a vote.

2. Handling Disruptive Audience Members

Despite best efforts by board members, certain topics engender disruptions, disrespect, and sometimes denigration by audience members—all of which are inappropriate. A code of civility for presentation should be adopted to provide baseline rules for audience participation. Such a code should be posted or handed out at public meetings. Posting clear rules that both board members and audience members must follow will provide both guidance for behavior as well as justification should audience members violate those rules.

In the event that an audience member becomes disruptive, there are several steps that can be taken by the board chair through a series of deliberate actions, not necessarily in this order.

(1) The board chair should express and record their concern.
(2) The board chair can acknowledge what the person is saying and offer to address it or seek to defer it.
(3) The board chair can refer to the rules, the record, or the agenda.
(4) The board chair can use body language, such as raising the hand in a “stop” signal in an attempt to isolate or suppress the misbehavior.
(5) The board chair can order a break and try to speak to the disruptive member personally to explain concerns and seek more constructive behavior.
(6) The board chair can ask for group support from other board members to discourage and suppress the disruptive conduct.
(7) Under U.C.A. § 52-4-301, the board chair may remove the disruptive person if the willfully disruptive behavior seriously compromises the orderly conduct of the meeting.

A board may also take other action to help diffuse anticipated problems, including holding meetings at a location more conducive to discussing the issue. Some forums can create an impersonal atmosphere prone to confrontation. Alternatively, other forums may be more appropriate to the issues and audience. The room set up (audio, seating, and lighting) can also impact the way that confrontational issues are handled.

Additionally, specific people with a propensity to be disruptive can be invited to discuss issues of concern in work sessions to allow airing of grievances prior to the meeting. Community members that are particularly insightful on issues may be invited to address issues at the meeting to show support of positions differing from those that are prone to be disruptive or respectfully expressing the views of the possibly disruptive person.

Finally, it is important that board members are aware of both their language and body language when differing opinions are presented to the board. Crossing arms, rolling eyes, grimacing, looking disinterested, and other expressions can turn a disagreeing audience member into a disruptive audience member as that audience member may feel disrespected or disregarded.

3. Holding Closed Session Discussions

Closed sessions may be held to discuss collective bargaining, litigation, property acquisition, and employment issues, among others. The exact items that are eligible for closed session discussions are set forth in U.C.A. § 52-4-205. A board may close a meeting upon two-thirds of the members approving the closing of the meeting. Although the contents are generally not available to the public, such meetings are recorded pursuant to U.C.A. § 52-4-206.

Because closed meetings are recorded, it is important that the same rules that apply to the procedures and behavior of board members are applied in both closed and open meetings. Closed meeting can be challenged and the record can be made public under U.C.A. § 52-4-304.

4. Effectively and Efficiently Managing the Board’s Agenda

Generally, the policies adopted by the board will provide guidance as to how matters are placed on the agenda. Typically, the board chair or other leadership determines the agenda items, although board members should have some ability to place matters on an agenda.

Staff members should prepare staff reports and submit a packet of the agenda and all staff reports with sufficient time to allow board members to review, research, and discuss agenda items prior to any meeting. Time limits for public comments and time guidelines for specific issues may be appropriate.

Items that are particularly contentious or complicated may require special care to make sure that the public has received the information necessary and that the board understands public concerns on the issue. Additionally, special meetings may need to be designated to deal with specific issues. Meeting events that include large numbers of guests, such as student reports or performances, or items that would involve lengthy discussions should be placed on the agenda in such a way as to allow smooth transitions. For example, if a large number of people will be leaving after a specific item is discussed; it is wise to place a short recess on the agenda to allow crowds to exit the meeting prior to moving onto other agenda items. Additionally, for complex items requiring debate, it may be prudent to address those items at the beginning of the meeting, when board members are fresh, or at the end of the meeting to minimize distractions, depending on the circumstances.

5. Creating Effective Board Governance

Creating effective board governance requires a substantial investment in the creation and compliance to board policies. This creates a clear governance structure. Additionally, it requires an investment in the personal relationships between board members, attorneys, and staff. It is important that lines of communication between the board and the administrators are both clear and open. Effective boards take great efforts to develop and maintain collegiality, trust, and an atmosphere of constructive debate and planning.

Additionally, while overseeing administrators, effective boards should not seek to micro-manage operational issues. Rather, board members should focus on planning and major decisions that help the entity progress toward meeting the core objectives and goals.

Much of the practice of law involves creative problem solving and development of win-win solutions, often within a climate of contention and distrust. Spaulding Law attorneys are committed to the success of our clients and experienced in finding solutions and addressing disputes in a professional and civil manner, no matter the setting.

This information is made available by Spaulding Law for educational purposes only and not to provide legal advice. By using this website, you understand that there is no attorney-client relationship between you and Spaulding Law, unless you have entered into a separate representation agreement. This information should not be used as a substitute for competent legal advice from a licensed professional attorney.

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