Public School Board Operations in Nebraska: Passing Motions, Accommodating Public Participation, and Deliberating Quasi-judicial Decisions

• Jurisdiction: Nebraska,United States
• Citation: Vol. 79
• Publication year: 2021

79 Nebraska L. Rev. 855. Public School Board Operations in Nebraska: Passing Motions, Accommodating Public Participation, and Deliberating Quasi-judicial Decisions

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Robert A. Bligh*

Public School Board Operations in Nebraska: Passing Motions, Accommodating Public Participation, and Deliberating Quasi-judicial Decisions

TABLE OF CONTENTS

I. Introduction .......................................... 855
II. How Many "Ayes" are Enough? ........................... 856
III. Accommodating the Public's "Right" to "Participate" at
a Meeting of the School Board ......................... 861
A. Board Hearings ..................................... 862
B. Public Comment Periods ............................. 862
C. Agenda Items ....................................... 863
IV. School Board Deliberations in Formulating Quasijudicial
Decisions ............................................. 864

I. INTRODUCTION

Public school districts in Nebraska are political subdivisions whose existence is authorized by the Nebraska Constitution.1 They act only with the authority2 granted to them by the Nebraska Legislature. Each public school board acts as the corporate governing body for the public school district3 that its members are elected to serve. As such, each school board possesses all of the governmental authority granted by the Legislature4 to operate its district's elementary and secondary5 education programs.

* B.A., University of South Dakota; J.D., University of Nebraska. Legal Counsel, Nebraska Association of School Boards, Lincoln, Nebraska.

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A school board makes many and varied decisions to act (or not to act) in the course of conducting the district's business. These include the approval (and denial) of claims; hiring (and firing) of employees; acquisition (and disposal) of property; adoption, repeal or amendment of board policies; adoption of budgets; setting of school district property tax rates; and many others.6

All official action taken by any public school board can be legally accomplished only through the votes of individual school board members, recorded in the official minutes of the board,7 on a motion made under an appropriate agenda item8 and as part of an official public9 meeting of the school board.

The balance of this article will attempt to offer answers to three questions about the conduct of the official meetings of Nebraska's public school boards: (1) How many "aye" votes are required to pass a motion properly before a public school board? (2) How can a public school board accommodate the interests and the rights of members of the public to participate in its meetings? (3) How may a public school board deliberate before issuing its decision following a quasi-judicial hearing to resolve a dispute or claim of an individual employee or other person?

II. HOW MANY "AYES" ARE ENOUGH?

Each official action taken by a public school board is determined by the votes cast by the individuals who serve on the board. Each vote must be cast for or against a motion made in an open public meeting of the board.

Question: How many affirmative votes does it take to pass a motion?

Answer: As often occurs when we are dealing with the law, the answer is, "it depends." It depends upon the number of members who serve on the board; it depends on the number of board members who are present; it depends on the number of board members who take part in the vote; and, it depends upon the subject matter of the motion being considered.

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Fortunately, it is possible to determine the correct answer to the question in any particular situation if we know enough about the situation, and if we know the applicable rules of law.

There are two fundamental rules of law which apply any time we want to know how many "ayes" are enough. One is statutory, a result of the legislative process. The other is part of the common law, a result of the judicial process.

The statutory rule is found in section 79-554 of the Nebraska Revised Statutes,10 which declares: "[i]n all meetings of a school board . . ., a majority of members shall constitute a quorum for the transaction of business . . . ."11

Class III school districts, which educate most of Nebraska's K-12 students, have either a six-member board or a nine-member board. The smallest "majority" of six is four. Therefore, a six-member board must have at least four members present in order to be able to transact business, that is; to consider and act upon motions properly before it. Similarly, the smallest majority of nine is five. Therefore, a ninemember board must have at least five members present in order to be able to transact business.

The second rule, the "common law rule," was approved by the Nebraska Supreme Court in Houser v. School District of South Sioux City.12 The second rule can be stated as follows: "[i]n the absence of a contrary statutory provision . . . a majority of a quorum which constitutes a simple majority of a collective body may act for that body."13

Thus, in the absence of a contrary statutory provision, a six-mem-ber board must have no fewer than four members present and no fewer than three affirmative votes (and no more than two negative votes) in order to pass a motion properly before it. The reasoning that supports these conclusions is:

1) if there are fewer than four members present, the quorum statute is not satisfied, so no legally effective action is possible;

2) if there are fewer than three affirmative votes, the common law rule is not satisfied, so no legally effective action is possible; and,

3) if there are more than two negative votes, the motion fails because the greatest possible number of positive votes would be three and "tie" votes do not take action.

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Similarly, in the absence of a contrary statutory provision, a ninemember board must have no fewer than five members present and no fewer than three affirmative votes in order to pass a motion properly before it. The significance of the number of negative votes depends on the number of members present and voting. The reasoning supporting these conclusions is:

1) if there are fewer than five members present, the quorum statute is not satisfied, so no legally effective action is possible;

2) if there are fewer than three affirmative votes, the common law rule is not satisfied, so no legally effective action is possible; and,

3) if there are more than two negative votes (with only five or six members present and voting), the motion fails.

4) if there are more than three negative votes (with only seven or eight members present and voting), the motion fails.

5) if there are more than four negative votes (under any circumstances), the motion fails.

The next question is, of course, "What are some of the contrary statutory provisions which might apply to alter the general requirements?" The list below contains several such requirements, most of which can be found in Chapter 79 of the Nebraska Revised Statutes.

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A student who has been expelled from any school, public or private, and who has not completed the terms of the expulsion, can be permitted to enroll in a public school in Nebraska only by "a majority vote" of the school board of the district "in which enrollment is sought."14

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When a city or village, which contains a Class III district, annexes territory which was within the Class IV or V district, the annexed territory can become part of the Class III district only if "approved by a majority of the members of the school board of the Class IV or V school district and a majority of the members of the school board of the Class III school district within ninety days after the effective date of the annexation ordinance."15

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Several kinds of district reorganization or boundary change proposals can be put into effect only after they are approved by a "majority" of the school boards of one or more of the affected districts.16

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Special meetings of Class I school districts may be called by a "majority vote" of the district board.17

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Special meetings of the Class V board of education can be called "on petition of a majority of the members" of the board of education.18

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"No person shall be declared elected" to the position of employee of the Class IV district "unless he or she receives the vote of a majority of all the members of the board of education."19

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The school board of a Class I, II, III, IV or VI school

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