GUEST COLUMN
Click here for part 1 of this article.
How this plays out in the Ozark R-VI School Board
- Deliberately flawed legal advice
When a paranoid school board wanted to censure one of its members for daring to talk to the public a year or so ago, the attorney drafted a letter of reprimand for all of the other board members to sign. It included:
“The Missouri Court of Appeals has stated as follows: ‘Unless otherwise authorized by the board, individual members are not empowered to act and cannot govern.’ Colombo v. Buford, 935 S.W.2d 690, 698 (Mo. Ct. App. 1996) Accordingly, let it be known the Ozark School Board has not granted Christina Tonsing the authority to conduct any such meeting, and therefore, all liability arising out of any such meeting falls to her personally. These meetings or similar individual Board meetings of any kind are not sanctioned by the Ozark Board of Education.”
It cites this court case as legal pretext for forbidding Christina Tonsing to meet with members of the public to hear their thoughts on the governance of our community schools. But if you look at the court case, you find that the judge was saying THE EXACT OPPOSITE. He says, in effect, that because individual board members are not empowered to act on behalf of the board as a whole, individual board members are at liberty to meet with members of the public without first announcing it as a public meeting.
Additionally, the attorney has regularly cautioned the board that they must not even talk about gender policies for the school district. Those who witnessed a recent board meeting will note that one of the board members accused Christina Tonsing of inviting them to do something illegal when she proposed that they define how the terms “male” and “female” were meant in board policy. The attorney has essentially alleged that current court cases have made it clear that school boards are to leave alone the issue of gender. But in the Blue Springs school district case she used as the basis for her argument, the judge specifically faulted the school district for NOT having a written policy about gender. He faulted them for operating based on an UNWRITTEN policy which they then evolved when it suited their needs. This is another clear case of the attorney using case law to argue the opposite of what it actually says.
- Social activism
The school district attorney happens to be an LGBTQ advocate. This is not to say simply that she is understanding and supportive of people with LGBTQ issues. We all should seek to treat each other with empathy and compassion. Instead, she has actively lobbied for legal accommodations for transgender issues. That is a position far removed from our community’s values.
- Conflict of interest
Consider what has consistently happened when school district employees have alleged retaliation, harassment, and intimidation FROM THE SUPERINTENDENT HIMSELF (Dr. Chris Bauman, who recently stepped down). Is it any surprise that the attorney advised the board that they must not hear the grievances of the employee? The attorney insists that it would bias the board in the event that the complaint eventually comes to a board hearing. Being biased this way could subject the board to a lawsuit later. There are numerous obvious flaws in this claim. First, the board is the only one to whom a targeted employee can appeal when the superintendent is the antagonist. And board policy obligates the board to serve this function. Second, the board repeatedly claims that the superintendent is their only employee (which is patently false). If they really believe this, then they have an explicit duty to hear the only possible source of certain negative details about their single employee. Third, hearing the complaint from the perspective of an aggrieved employee could only bias the board IN FAVOR OF the targeted employee. So there is no prospect of a subsequent lawsuit for being too favorable to the employee. Fourth, hearing the employee’s complaint is the best way to avoid the situation escalating to the point where a lawsuit might be considered. Ignoring the employee’s complaint leaves lawsuit as the employee’s only recourse.
The attorney has a very clear conflict of interest in such cases. When an employee alleges that the superintendent is acting unjustly, the superintendent’s lawyer is now a biased party in the allegation. She cannot be the board’s source of legal opinion on the matter as she is the one who advised the superintendent on how to proceed in the first place (including, quite possibly, how to get away with that abuse of authority). She is likely implicated in the same accusation that was levied against the superintendent.
Even if the attorney is not implicated in that specific charge, she is the superintendent’s advocate and an intimate awareness of details of the case which unfairly bias her in the superintendent’s favor. Their working relationship promotes mutual regard between the two of them. If an employee accuses the superintendent of abuse, the attorney cannot now be the one to advise the board on whether the conduct constitutes abuse because that would call on her to adopt an impartial perspective, possibly even a critical or adversarial perspective against the superintendent. And her assigned role has long been to be his advocate. The conflict of interest is quite explicit. First, she is his close ally. Second, she has likely advised him in favor of some of the behaviors he now stands charged with. And third, she cannot effectively be both advocate for and accuser of the same individual.
For the school board to ask the attorney whether the superintendent’s actions, which were based on her advice, were legally defensible is precisely the same as asking the attorney whether her own advice is legally reliable. It is an obvious conflict of interest.
Additionally, asking the same attorney who advises the superintendent to explain to the school board whether his actions were justifiable undermines the superior-subordinate relationship which should exist between the board and its superintendent. The board should be supervising him. They should be honestly considering allegations against him. Having his advocate explain why what he did is just fine is to make the board a mere rubber stamp for the superintendent. They need an INDEPENDENT source of legal opinion whenever he is accused.
Whenever an employee accuses ANY senior district administrator of misconduct, the board needs to employ a different attorney, from a different law firm, from a different town, on the case. Only an independent law firm has any prospect of giving honest advice on the case. Since education law firms ALWAYS serve as advocates for the school district (i.e., there are no law firms whose principal area of practice is finding school districts at fault and suing them), even an independent law firm is likely to carry significant bias. Still, it is at least evidence that the board did the best it could to obtain independent review and advice on the charges against the senior district official.
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In summary, the Ozark community has a problem on its hands. It is bad enough to have a school board that believes its role is to represent the school district to the community, rather than to represent the community to the school district. It is bad enough that the school board believes its principal role is to facilitate the superintendent’s agenda rather than to provide the superintendent with an agenda. It is bad enough that the school board is deaf to the community. But on top of all that, we also have a school district attorney who uses the power of law to subordinate the school board and promote injustice in the school district.
Who is the Ozark School District Attorney? Click here to find out!
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