Saturday, May 12, 2012

Improper Advocacy by PCS Board VP?

Was Potsdam BOE vice-president Chris Cowen's letter to the editor (recently published on North Country Now) a violation of NYS Education Law? Boards of Education are prohibited from what is called improper advocacy. In other words, Boards cannot "spend public money to encourage voters to vote in favor of the school budget or any proposition. District funds may not be used to express 'favoritism, partisanship, partiality, approval or disapproval...of any issue,  worthy as it may be."  In addition, "This prohibition is not limited to advocating for a 'yes' vote. Even subtle promotional activities are prohibited." (See Appeal of Meyer)

However, individual school board members, acting in their personal capacity, may urge voters to vote in favor of a proposed school budget. So it begs the question, was Mr. Cowen acting in a personal capacity when he wrote his letter to the editor?

According to State Education Law, advocacy by individual BOE members is legal as long as it is done "at their own expense and on their own behalf. In other words, they cannot use district funds, facilities, or channels of communication, or claim to be speaking on behalf of the board and must avoid giving the impression that they are doing so." (See Appeal of Johnson)

"Board members expressing their personal views in a letter to the editor must 'clearly distinguish their personal views from those of the board they represent.'" (See Appeal of Wallace) "A byline of an editorial that identifies the author as a board member would be inappropriate, because it gives the impression that the author was speaking in his or her official capacity." (Id.)

Mr. Cowen, in his letter to the editor,  identifies himself as both a member of the PCS BOE and as its vice-president. Thus, Mr. Cowen did not distinguish his views from those of the board. In addition, Mr. Cowen writes, "We are asking the voters to approve a budget that is 0.9% above the tax cap..." There are two problems with this sentence. First, the "We" Mr. Cowen alludes to is clearly the PCS Board of Education. Thus, he presents himself as speaking on their behalf - not for himself as the law dictates. Next, the BOE is not permitted to ask voters to vote affirmatively on the budget. They may explain the budget and explain the consequences of the budget, but they may not solicit an affirmative vote on the budget.

Experienced Board members are usually very cautious about speaking out once a budget is passed by their Board lest they cross the line between speaking on their own behalf and speaking on behalf of the Board of Education. Mr. Cowen has crossed the line. Has he opened the District up to a possible legal challenge to the results of the budget vote?

There is much for Board members to learn. First and foremost, do not create any liability for the district.

No comments:

Post a Comment