School board may have defied state law in hiring outside counsel
Editor's note: The original version of this article stated that the consideration of the firm Tyler Smith's & Associates as supplemental legal counsel violated state public meetings law. It was changed to state that the action "may have violated" state law. On June 7, 2022, a judge ruled that the board's action did not violate state law. The Graphic regrets the error.
In the moments leading up to an online executive session of the Newberg school board on Aug. 24, a motion possibly made in defiance of state law by vice-chairman Brian Shannon sought to hire outside counsel just as the body was preparing to hear from attorneys already retained by the school district.
Shannon moved that the district retain Tyler Smith of the firm Tyler Smith & Associates as supplemental legal counsel. The motion, seconded by director Renee Powell and later passed by a vote of 4-3, could be a violation of public meeting laws because the public is required to be notified beforehand about issues discussed and voted on by the board in open session.
"All meetings of a governing body must be open to the public, unless Public Meetings Law permits the body to meet in executive session or otherwise provides an exception," Oregon public meeting laws say. "A 'meeting' is the convening of any governing body 'for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter.'"
The board was not yet in executive session and although a quorum was present it could not legally deliberate and make a decision. Shannon argued against this point, however, saying the district has a right to retain legal counsel as it sees fit and need not notify the public in advance.
"I'm not changing our legal counsel," Shannon said when pressed by other board members about the unexpected motion. "I'm supplementing it."
The district's attorneys suggested the board go into the planned executive session and hear their legal advice on potential litigation against the district before moving to hire Smith. Shannon ignored that suggestion and moved forward with his motion, drawing complaints from other school board members.
"None of this has been publicly noticed," director Brandy Penner said. "We do need notice when the board is taking actions … This is the four of you colluding outside of public meeting laws to make decisions for the board."
"There's been no collusion," Shannon responded.
"This is not a great way to start out unity, to have an illegal surprise motion that is going to be costing the district money," Penner later said. "And you want us to turn around and talk about unity? We may as well just cancel the (board) retreat. This is a waste of time."
Directors who eventually voted in the affirmative spoke in support of hiring Smith, talked about his background and appeared to have had access to more information on the issue than the directors who voted against the motion. If a quorum was held outside of an official board meeting and the four members colluded in the way Penner alleged, that would also be illegal.
After the motion passed, Smith was added to the Zoom call and the board entered executive session. Pursuant to state statutes, this newspaper cannot report on what was discussed in executive session beyond the meeting's general subject, which was to consult district counsel on litigation or potential litigation facing the district.
Prior to the Aug. 24 meeting, the Newberg Education Association — a group comprised of nearly 300 educators in the district — filed a tort notice indicating it intended to sue the school board. The NEA has one year from the filing of the tort notice to file the lawsuit.
"The Newberg Education Association firmly believes every student deserves an education where they feel safe and validated and professional educators deserve to work in a building where their health, safety and professional judgment are respected," the NEA wrote in a Facebook post Tuesday. "To this end, NEA served the Newberg school board with a tort claim notice today to ensure these core values of public education continue (to be) met and not disrupted by a school board with an agenda furthered by outside interests.
"Just as in any other attack on the rights of our students or educators, NEA will use its collective voice to ensure the pillars of education are upheld: truth, validation, justice and the capacity for educators to collaborate with each other and building administrators with the goal of understanding what's best for their respective classrooms.
"The decision to take legal action is not political. The board's new directive is in violation of the law. NEA recognizes the board's new directive and potentially upcoming directives for what they clearly are: an overreach by the board to violate state statutes, violate several articles of the collectively bargained agreement, and minimize professional educators' abilities to create and design classroom atmospheres and learning experiences that simultaneously make students feel welcome, address specific curricula and are pertinent to students' experiences -- all of which are touchstones of modern education."
The NEA made its tort claim in response to the board's directive banning Black Lives Matter and Pride displays in schools, which the ACLU has called unconstitutional and nearly 200 community members protested en masse Aug. 24 beneath the flagpole on First Street.
Whatever legal ramifications lie ahead for the school board after Shannon's motion and the board's hiring of Smith remains unclear at this stage. The next public board meeting is scheduled for Sept. 14.
Possible legal troubles for some board members
According to Oregon law, residents of the school district and taxpayers in general, and members of the teachers union can file suit against board directors.
"If the court determines that a governing body made a decision in violation of public meetings law, the decision may be voided or the court may order appropriate equitable relief," a state Department of Justice finding says. "The court may also order payment of the plaintiff's reasonable attorney fees."
In addition, "If a governing body's violation was the result of intentional disregard of the law or willful misconduct by a quorum, then the court will void the decision (despite any attempt to reinstate the decision), unless other equitable relief is available."
A lawsuit must be filed within 60 days of the board's decision (roughly Oct. 23), would go before a Yamhill County Circuit Court judge and individual board members "will be personally liable to the governing body for any attorney fees it has to pay to the plaintiff," the DOJ states.
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