Two Prior Lake-Savage board members found in violation of board policy for questioning district

Prior Lake American

Two Prior Lake-Savage Area School Board members were found in violation of board policy by board chairman Richard Wolf for questioning district administration in board meetings and on Facebook.

Board members Melissa Enger and Mary Frantz now each have one strike against them, so to speak, according to a four-step policy adopted in November 2016 that can result in removal from the board. But some question the legality of a policy that could lead to the expulsion of publicly elected school board members for things they say, saying it infringes on their First Amendment rights.

Enger and Frantz received written notices from Wolf in March and November 2017, respectively, informing them they violated board policy. Through an open records request, the Prior Lake American obtained the letters in mid-March after a series of requests and exchanges beginning in April 2017.

Enger was found in violation of board policy in March 2017 for questioning district staff during the American Institute of Architects contract review with Nexus on March 6, 2017, during a board meeting. She demonstrated a “willful and continuing violation of policy,” according to the letter dated March 27, 2017.

“You publicly stated that the current contract and relationship with our vendor, Nexus as (sic) a ‘scam’ and a ‘cancer’ and Nexus is essentially ripping‐off the district without any evidence,” the letter said. “You maligned and implied our district financial processes concerning payment to Nexus was not of the highest ethical standards and was somehow deceitful.”

Enger “insinuated our Superintendent was willfully not telling the truth concerning payment to Nexus,” the letter said.

“You know via the email to you, that the Business Director quickly corrected the superintendents (sic) incorrect number and explained the situation concerning the payment,” Wolf wrote.

Further, Enger “made a derogatory statement concerning our financial audit and insinuated our district does not meet the highest level of integrity concerning our financial reporting.”

Wolf wrote that Enger violated several board policies, including one that reads, "Once the board has taken action, board members shall support the official position of the district," and another that reads board members should, “Criticize privately, praise publicly."

"You must recognize and understand that the things you say during a public meeting have an impact, not only the district as a whole, but on a personal level to the administrators, staff, teachers and all stakeholders in the district," Wolf wrote.

Wolf also wrote he had warned Enger during a phone call about an email she had sent him "that used phrasing that did not protect the integrity of the district."

“It’s unfortunate that a few on the board interpreted my comments as a policy violation,” Enger said in an interview. “I disagree with it and it was to be private and it was unfortunate because that’s not the process of how it works with the board. That was in the past and we move forward as a board. We’ve got more important things to deal with, like school security.”

In the letter Wolf sent to Frantz in November 2017, he wrote, “Previously, we spoke privately concerning your commentary in the Prior Lake American and Savage Pacer and how several board members viewed that and how that came across to the reading public and the district’s constituency."

Frantz wrote a commentary published in both the Prior Lake American and Savage Pacer newspapers in which she discussed grappling with how to vote on the fall school district referendum. Frantz wrote that the board owed it to the community to “have a more thorough analysis of risks and benefits (of the referendum).”

Wolf wrote the following in the letter to Frantz, outlining the reasons why she was found in violation of board policy:

• "On a Facebook post that was subsequently taken down, you questioned the impartially (sic) of the district information without bringing your concerns to the district administration.

• On a Facebook post, you incorrectly stated that the district moved some of the cost of the referendum into lease levy, which is incorrect.

• On a Facebook post, you incorrectly questioned the correctness of the open enrollment number provided by the administration that were published in the Prior Lake American and Savage Pacer.

• On a Facebook post, you incorrectly stated that our data policy should be in 'opt‐in' when in fact it is an 'opt‐out' that is clearly communicated to parents via email and communicated in student’s handbook.”

"I didn't agree with what they wrote me down for," Frantz said in an interview. "I don't agree with their accusations. I believe we have factual disagreements."

After the ‘private conversation’

According to district policy, if Prior Lake-Savage Area School Board members are found in violation, the first step is a conversation in a private setting between the board member and the chair or other individual member and the conversation is supposed to be reported to the "balance of the board."

"It was not a disciplinary action, it was a conversation — it was a private conversation," Wolf said regarding his informing Enger and Frantz they were in violation of board policy. "It's a private conversation between board members. It happened more than five months ago and we are moving on."

After the private conversation, if a board member continues to violate policy, the next steps are a discussion in a public meeting between the offending member and the school board, then public censure and/or removal from appointed assignments. The final step is removal from the board.

Policy history

The policies approved in November 2016 outline how the board should govern itself. Wolf said they are modeled after policies from the Minnesota School Board Association and other districts. Enger was on the board when the policies were approved. Frantz was not.

The MSBA outlines basic ethics for a board and provides templates for policies that boards can adopt or alter. The "criticize privately, praise publicly" is not wording that shows up in the template, according to the association, but it’s one the Prior Lake-Savage School Board uses.

On the conduct and ethics page of the association's website, it says an effective board "takes full responsibility for its activity and behavior," "speaks with one voice after reaching a decision," "sets an example of respectful and civil leadership," and "encourages its members to express their individual opinions, respect other's opinions and vote their conscience."

First Amendment rights

The Prior Lake-Savage Area School Board is not the only board to use such language in its policies.

In Colorado Springs, Colorado, a school board member said his First Amendment rights were violated by the adoption of similar policies after he questioned the influence a developer had on his board.

In Columbus, Ohio, the state auditor said similar policies prolonged an illegal data-rigging scandal by allowing administration to continue unchecked by the board. That board introduced a motion to get rid of the policies following the scandal.

The Prior Lake-Savage Area School Board also has a policy to "encourage and respect the free expression of opinion by fellow board members and others who address the board."

Minnesota Newspaper Association attorney Mark Anfinson said just because the policy was unanimously approved doesn't mean board members are entirely bound by it.

"They sometimes try and claim that if all the board members agree with the policy, they're bound by it — I think that's pretty dubious," Anfinson said. "There are many cases where not all members agree to it and you might have new members come in."

Attempting to monitor speech triggers the First Amendment, which limits speech that government can regulate, Anfinson said.

"The First Amendment is very strong, it's very broad and it protects most forms of expression," Anfinson said. "Punishing expression is a very treacherous path for governmental bodies to go down."

Some speech, such as that which violates student privacy, would be punishable because it’s against state law to share private information, Anfinson said.

"Certainly there are some things members could be punished for," Anfinson said. "It's all about what specific speech and what specific statements. They can adopt that policy, but they can't enforce it beyond a point if the comments of the school board member publicly are protected speech."

Wolf maintained the initial conversation was not a punishment.

"This was a private conversation," Wolf said. "It wasn't disciplinary, there was no punishment. I'm not going to comment on any private conversations."

First Amendment violations also depend on the severity of the retribution — for instance, a conversation would not necessarily violate it. However, if the board member were to be removed from the board, as outlined in step four of board policy, then it would be "over the line," Anfinson said.

"Expelling an elected member of a school board for speech or expression is almost certainly going to... that would be very difficult for them to get away with," he said. "Removal is, I think, clearly over the line in almost all cases."

Even if it doesn't violate the First Amendment, a board should not limit the speech of its members, Anfinson said.

"It's troubling to me," he said. "They shouldn't be doing that, that's not their function. The law sometimes allows public officials to do things that I don't think they should be doing."

The wording of the board policies is too vague about what speech is restricted, University of Minnesota Professor of Media Ethics and Law Jane Kirtley said.

"I'm not sure that that is specific enough to constitute adequate notice to the board member of what is allowed and what is not, because that's very subjective," she said. "What I think probably is important is the question of whether the board policy is clear about what the restrictions are."

As a citizen, Kirtley said she would hope a board would disagree openly so constituents can see how they reach a decision.

"I would personally say it's a good thing when board members air their concerns, especially at the board meetings itself," she said. "From an open, accountable government philosophy, giving board members an opportunity to air grievances at a board meeting is a good thing and I wouldn't want to see that curtailed as a citizen."