Some SC school board members now have far more power during covid emergency

May 1, 2020

Investigative Reports

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By RICK BRUNDRETT

In South Carolina, public school boards have broad powers, such as hiring the district superintendent, setting administrators’ salaries and approving annual budgets.

Yet since Gov. Henry McMaster closed public schools statewide in March, school boards in at least five districts have given their board chairpersons under identical emergency resolutions the sole power to suspend existing district policies or procedures to deal with the coronavirus outbreak.

But neither McMaster’s emergency orders nor existing state laws specifically allow school boards to transfer their collective authority to a single board member, The Nerve found in a review.

And in the five districts, existing school board policies dealing with the repeal or suspension of policies in emergencies give that authority to their respective boards, contradicting the emergency resolutions approved by those districts.

School boards in South Carolina exert considerable control in a variety of areas, under state law and board policies. Among other things, they can:

  • Approve annual district budgets;
  • Hire the district superintendent and conduct evaluations;
  • Set administrators’ salaries and supplement teachers’ pay beyond the state salary schedule;
  • Authorize the building of new schools;
  • Buy and sell property;
  • Settle lawsuits

How much power school board chairpersons will assume under emergency resolutions approved by their respective boards remains to be seen.

In the wake of the rapid spread statewide of COVID-19, The Nerve has pointed out government overreach at the local level, including, for example, a ban on carrying guns – with no exceptions for those with legal concealed weapons permits – during the city of Columbia’s initial curfew.

The Nerve’s latest review found identical emergency resolutions adopted in April by five school districts – Anderson School District 1, Anderson School District 3, Darlington School District, Lexington-Richland District 5 and Rock Hill School District 3.

The Beaufort County Board of Education last week withdrew a motion to adopt the same resolution, shortly after The Nerve sent written questions to the district about the matter.

Under resolutions adopted by the five districts, the board chairperson, in consultation with the district superintendent, can waive or suspend “existing policies, administrative procedures, and other rules,” if compliance would prevent or delay “necessary action” by the board or school district in dealing with the COVID-19 outbreak.

That sole authority includes “making necessary and appropriate arrangements to account for the local needs and unique circumstances” of the board or district.

The resolutions also give the board chairpersons the power to waive or suspend existing district policies or procedures in “carrying out the applicable” governor’s emergency orders, with the board as a group having the same authority if the policies or procedures “conflict” with the governor’s orders.

In an email response Wednesday, Anderson School District 1 spokeswoman Jane Harrison said the “only time any policy would be waived or set aside” by the board chairperson is “if it is in direct conflict with the (governor’s) emergency order.” The school board on Tuesday adopted its emergency resolution.

The other four school districts that approved emergency resolutions either did not respond to written questions submitted last week by The Nerve, or couldn’t provide any answers by publication of this story. Among other questions, the superintendents or district spokespersons were asked whether their board chairpersons had suspended any policies, and if so, which ones.

Harrison confirmed that the Anderson School District 1 emergency resolution was initiated and drafted by the Columbia-based law firm of Halligan, Mahoney & Williams. All five districts are clients of the firm, with paid fees to the firm so far this school year ranging from $1,065 in Anderson School District 3 to $155,223 in Lexington-Richland District 5, online district check registers show.

Law firm partner Kathryn Mahoney did not respond last week to written questions from The Nerve.

No ‘back-door power grab’

In his two emergency orders on March 15 and 28 closing public schools statewide, McMaster authorized school officials to “make any necessary and appropriate decisions or arrangements to account for local needs and other unique circumstances.” Last week, he extended school closures to the end of the regular school year.

But McMaster didn’t specifically authorize or allow local school boards to transfer their authority over district polices or procedures to a single board member.

School boards under state law can designate a board member to “conduct any hearing in connection with any responsibility of the board,” though it doesn’t specifically allow the board to give one member sole authority to waive or suspend district policies or procedures in emergency situations, as was done by the five districts in The Nerve’s review.

Under identical existing policies in the five districts, a majority of school board members – not a single board member – in emergency situations can “temporarily suspend the operation of any section or sections of board policy which are not established by law or contract.”

Records show that the Darlington County and Lexington-Richland District 5 school boards each adopted their respective emergency resolutions on April 6. The Anderson School District 3 board approved its resolution on April 13, while the Rock Hill District 3 board adopted it on April 14.

Rock Hill District 3 board chairwoman Helena Miller at the work session said the board was “advised by our legal counsel, (the state) school boards association, that we need to pass an emergency resolution so that our district can continue to operate.”

Contacted by The Nerve, Scott Price, executive director of the South Carolina School Boards Association, said the emergency resolution “did not come from us,” and that the Halligan law firm “sent it to their client districts,” though he didn’t know how many districts were contacted.

Although Price, an attorney, initially said he didn’t have a problem with the resolution, he later acknowledged there is no state law specifically allowing a school board to transfer its authority over policies to a single board member. But he added, “There’s nothing I’m aware of that prohibits a board from being able to do that.”

“I don’t see this as a back-door power grab, but I don’t see this (emergency) resolution for every board, either,” Price said.

At its April 13 school board meeting, Anderson School District 3 superintendent Kathy Hipp said its emergency resolution “follows the resolution that (state schools) superintendent (Molly) Spearman has gotten the state board to approve for her.”

In an email response Monday, Ryan Brown, the state Department of Education’s chief spokesman, said the agency was “not involved (with) nor even aware” of any local district emergency resolutions until contacted by The Nerve.

Brown said the state Board of Education at its March 24 emergency meeting approved, though pointing out it was “not technically required to vote on,” an emergency regulation allowing Spearman to “exercise the necessary discretion in waiving or suspending any provisions” of state education regulations that “may be impacted” by the coronavirus outbreak.

But he added, “This was not a resolution, and no (local public) district was encouraged to introduce or adopt any resolutions or policy changes as a result of this emergency regulation.”

At The Nerve’s request, Brown highlighted state education regulations suspended to date by Spearman, including, for example, the requirement that elementary and middle school students receive at least 1,800 minutes or 30 hours of instruction in certain subjects per week.

‘Was that legal?’

The Beaufort County Board of Education at its April 21 meeting withdrew its emergency resolution after The Nerve that afternoon sent written questions about the proposal to district spokesman Jim Foster – along with a written opinion to the district from the S.C. Attorney General’s Office.

In the April 16 opinion – which is advisory only – Matthew Houck, an assistant attorney general, wrote that although the clause in the resolution dealing with the board chairperson’s authority to suspend policies or procedures “does not appear to conflict with state law on its face, it may be applied in a manner that would.”

“One concern with this clause is that it may be used in a manner that violates quorum requirements,” Houck wrote.

The school board earlier voted 7-4 to seek the legal opinion before deciding whether to approve the resolution, according to Foster. Board member Richard Geier made the initial motion for the resolution but moved at last week’s meeting to withdraw it, Foster said.

Ask if district superintendent Frank Rodriguez would support the resolution at a later date, Foster replied, “He doesn’t have any concerns with it going away.”

In an April 1 email to Rodriguez and board chairwoman Christina Gwozdz – a copy of which was obtained by The Nerve – Kathryn Mahoney of the Halligan law firm said her firm “developed a proposed Emergency Resolution for the Board to consider making at an upcoming meeting to address the 2019 Novel Coronavirus in order to deal with current Board policies and procedures that may be in conflict with current federal or state orders or guidance.”

“We recommend the resolution be listed as an action item on the Board’s agenda as ‘Emergency Resolution Re: 2019 Novel Coronavirus response,’” Mahoney wrote.

Foster told The Nerve that the Halligan firm provided the resolution “pro bono,” or free, to the district. Online district check registers show that so far this school year, the district has paid a total of at least $20,615 to the firm. Foster said the district has a staff lawyer, and that the Halligan firm has been “working with us on individual issues for years.”

In an April 8 letter to state Attorney General Alan Wilson requesting a formal opinion on the resolution, Gwozdz said Mahoney “sent the resolution without solicitation,” noting the school district is a client of the firm; and that an “informal (telephone) opinion” by the South Carolina School Boards Association “confirmed no issues with the resolution’s legality.”

But school board member JoAnn Orischak had concerns about it.

“Could we abdicate our individual authority as elected officials over to one individual?” Orischak said when contacted last week by The Nerve. “That was my primary concern. Was that legal?”

Orischak said in her two terms on the board, it has been a “prevalent” problem “where the superintendents deal primarily with the (board) chairs, and information doesn’t often trickle down to the rest of the board members.”

“So this (emergency) resolution was an in-your-face confirmation of that,” she said.

Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-254-4411 or rick@thenerve.org. Follow him on Twitter @RickBrundrett. Follow The Nerve on Facebook and Twitter @thenervesc.

Nerve stories are free to reprint and repost with permission by and credit to The Nerve.

 

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