luna board training
TRANSCRIPT
Luna Board Training: Authority and Typical Errors
Tony F. Ortiz, Of Counsel
Scheuer, Yost & Patterson, P.C.
Goal of the Presentation
Help identify the tough issues and some typical
scenarios that often challenge board members
Discuss the questions that you need to be asking
yourself regarding your role and responsibility as a
board member
Review some of the challenges that may be
particular to Luna
Answer your questions
Long Term Health of Luna If Luna is to be viewed as an institution where the
education is deemed to be of value, the institution must be and be viewed as “legitimate” in all of its dealings with the community. Class/academic outcomes
Hiring
Wages
Use of resources
Ethical Control by all leadership
Chain of Command
Legitimacy of Processes
Role of Counsel
Why do we need counsel:
Law and Policy
Quality New Mexico: 1) need for ethical behavior, 2) compliance with all legal and regulatory requirements, and 3) managing risk factors. (Section 1.2)
Accreditation: Governance for the well-being of the institution. (HLC, Factor 7)
Role of Counsel Attorney for the Board
Board as a whole, not any individual member
Priorities include:
Protect the legal interests of the Board
Helping the board avoid liability exposure
Examples: Reporting possible claims, manage employee matters
Serving as a resource for the Board
Examples: Reporting options in a contract negotiation, outlining risks and costs,
Strategic Advice
Examples: Changes to policy, best practices
Represent the majority position on any given issue.
Day to day work
Work on a regular basis with the Chair
Help the President with day-to-day administration pursuant to the goals/aims of the Board
How can I do a better job of these duties so that all of the Trustees know and understand my work? Contacts
What are appropriate roles for Board
members?
Acting as one body.
Policy 2.02, Duties of the Board of Trustees:
Determine financial and educational policies
Choose a president to handle day to day operations
Employ other personnel for maintenance, administration upon recommendation of the President.
Acquire, lease and dispose of property
Set tuition and fees
Award legislative scholarships
What are appropriate roles for the
President?
Policy 2.04. Relationship with the President Chief Executive Officer
Administer and supervise the college
Establish and administer procedures that carry out the board’s policies
Sole agent of the board, and he supervises everyone else
Respond to complaints
Handle requests for information from the board.
Manage all aspects of employment
Employment Matters
Policy 401A(5): President “approves all actions regarding the assignment of work, directing of work, employment, promotion, compensation, discipline or discharge of employees of the College as provided by Board policies.”
Policy 401A(6): President “makes administrative assignments, adjust administrative organization and make any other changes in personnel duties, offices, and titles as are considered necessary by the President to meet the changing needs of the College.”
The Board has an approval role in hiring and in setting of the applicable policy.
Board Member Errors:
Interference with Staff Management Violation of Policy
As a Trustee, you are clothed in the authority of Luna. Employees perceive you as having power. Makes you susceptible to: Claims of harassment
Claims of discrimination
Claims of Retaliation
Claims of violating policy
Many Implications: Cost, time, energy, embarrassment, accreditation
-Your own worst enemy.
-Board Hearings
-Rule of Thumb: Conduct yourself as if you were simply a member of the public.
Requests for Information by Board
Members
No Trustee has authority when acting alone
Board Policy 2.07, Sections 5 and 6. (5) College employees shall not serve as agents for individual Board
members to assist in investigations, research, or the provision of information or services that are not authorized by the Board or by one of its formally constituted committees. Accordingly, college employees who receive requests for information or services shall take no action except to refer them to the President. The President shall refer such requests to the executive committee of the Board for disposition.
(6) Nothing in this document shall be interpreted to prohibit college employees from responding directly to simple questions posed by any member of the Board when such questions can be answered immediately and do not require research, investigation, special services, deflection form other work tasks, or written responses.
When you ignore the role of a trustee,
it hurts the College.
Trustees should not permit or encourage actions outside of the chain of command
Compliance with Board roles
Fairness to the President, undermining his leadership
setting expectations for staff and community
consistent treatment of all community members
protecting confidentiality
Hurting accreditation
The Guiding Philosophy of the Trustee
Board members must be ready to lay aside their personal views, preferences, and advantage in favor of actions that contribute to the best interest of the college and the community that the college serves. Accordingly, and to a significant extent, each trustee must be willing to subordinate his or her individuality to function as a member of a larger body, the Board of Trustees, and to act at all times in the interest of the collective good. Board members as trustees hold a public trust and must be willing to sacrifice personal and professional gain to fulfill this trust.
Quiz: Authority Over the President
A board member wants the President to adjust
his handling of an administrative issue.
What questions does that board member need
to ask?
Do I individually have the authority to request
such a change? Does the Board?
What might be the best way to raise this issue?
Am I hurting the College or creating exposure?
Quiz: Requests for Administrative
Information
A board member continuously asks staff for reports and information?
What should this board member be asking himself?
Do I have authority to require this on my own? Does the board?
Am I following the correct chain of command?
Am I placing improper pressure on staff?
Am I being perceived as abusive or retaliating against particular staff?
What impacts does this have on the board’s relationship with the President?
How do these demands effect the smooth operation of the College?
Board Authority Over
the President’s Work
Board can inquire and evaluate regarding results and
outcomes
Enrollment Targets, GED Programs, Job Description
Updates, Job Analyses, Employee Costs, Organization.
Inquiry about progress/impediments
Track changes
Provide for resources
Suggest ideas for change
*What you cannot do is attempt to run these programs yourself.
Board Assistance
in Employment Issues.
Board:
Be the “ears and eyes” of the college, not the legs,
hands, and mouth. Help the President anticipate
problems
Avoid intervening in employee issues or
communicating with employees in detail about
their concerns
Remember that the President is your CEO; all
information should flow through him/her.
Quiz: The Community Complaint
-Board Member receives a complaint about an employee’s conduct from a community member.
-What questions should you be asking yourself?
-How do I respond to this person?
-What is my role in any investigation?
-Where do I take the concern?
-What is the risk if I overstep my boundaries?
-Proper process?
Conflicts of Interest: Nepotism
Policy 5.11 (staff manual): The College shall not initially employ or approve the initial employment in any capacity of a person who is the relative of a current board member, administrator or employee of the College, except in limited circumstances.
Sibling, parent, grandparent, great grandparent, spouse, child, step child, grand child, great grand child, uncle, aunt, nephew, niece.
Conflict of Interest (general)
Governmental Conduct Act:
10-16-3c: “Full disclosure of real or potential conflicts of interest shall be a guiding principle for determining appropriate conduct. At all times, reasonable efforts shall be made to avoid undue influence and abuse of office in public service.”
10-16-4a: It is unlawful for a public officer or employee to take an official act for the primary purpose of directly enhancing the public officer's or employee's financial interest or financial position. Any person who knowingly and willfully violates the provisions of this subsection is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
21-1-17. Interest in contracts by board members or employees prohibited.
No employee or member of a board of regents of a state educational institution shall have direct or indirect financial interest in any contract for building or improving any of that state educational institution or for the furnishing of supplies or services to that institution except as permitted pursuant to the University Research Park and Economic Development Act [21-28-1 NMSA 1978] or the New Mexico Research Applications Act [53-7B-1 NMSA 1978], or unless it complies with provisions of the Governmental Conduct Act [10-16-1 NMSA 1978] and the Procurement Code [13-1-28 NMSA 1978].
OPEN MEETINGS ACT
Purpose: Notice, Transparency
What communication is at issue?
What should you be asking?
Any discussion of college business?
Notice
Quorum?
Rolling Quorum?
Use of email communications by Board
members to each other, to administrators, to
members of the public is generally considered
public information.
Use of your home email versus a college
account.
“Reply All”
Confidentiality
Executive Session
Attorney Client Privilege
Identifiable student and employee matters Do not talk to the press. Say, “I’m sorry,
personnel matters are confidential.” Do not talk to community members. Say,” I’m sorry,
personnel matters are confidential.”
After the Board has made a decision, your discussions in executive session must also remain confidential.
“Rogue” Board Members Many forms:
Encroaching in personnel/student issues;
Interviewing parties, unauthorized site visits, pressuring the president, seeking special access to records or information
Leaking confidential or executive session topics
Ignoring policy
Utilizing position for personal gain or access
Abusing staff
First, try not to be the problem. Know your role and statutory limitations.
Board steps to intercede
Ramifications for the subject board member
President’s Evaluation/Termination
A board member expresses an interest in firing the president and wants your support. What questions should you be asking?
What is the history of evaluation, remediation and write ups?
Is there just cause?
Is irreversible damage done by pushing such a proposal?
What is the legal liability if the college loses?
Is a negotiated buy out a good use of public funds? If not, what steps need to be taken to improve performance, provide guidance and document issues.
Quiz: The Full Court Press
A reporter wants to speak to you about the Board’s position on various college issues.
What questions should you be asking yourself? What is your authority to act or speak on behalf of the
Board?
Is there a possibility that your individual opinion may be misconstrued as the position of the Board?
Are you speaking on issues that may create liability?
Are you speaking on issues that touch on executive session topics or identifiable student/employee matters?
Does the statement undermine the Board majority?
Quiz: Special Access A board member wants to appear responsive to community
needs and wants to begin regular college site visits, staff meetings, and interviewing staff members.
What questions should that board member be asking?
As a board member, do I have any access rights that are different from the community?
Is this disruptive?
How should information be gathered?
What is the likely impact on staff?
How are board special access issues, in this or other situations, likely to be viewed by the public?
Working Together
President:
Pursues board’s agenda
But President’s failures do not justify attempts by
the board to do his/her job
Board
Should support the President and respect his/her
discretion in how to accomplish the board’s aims
But the President must remain responsive
