Welcome to Coffee Talk - SCHOOL BOARDS ASSOCIATION - Ask us your pressing questions - New York State ...

 
The NEW
                                       YORK STATE
                             SCHOOL BOARDS ASSOCIATION
                                           presents

                             Welcome to Coffee Talk
                              Ask us your pressing questions

(c) 2018 NYS School Boards
Association, Inc.                                              1
Use of Videoconferencing
                   • OML-AO-05535 (1/17/17): Video-
                     conferencing while at Kennedy Airport.
                     – Optimally meetings should take place where there is
                       little to no impediment to public observers
                     – Videoconferencing allows public to see the public
                       body at work including members participating from
                       a remote location

                        Use of Videoconferencing
                   • OML-AO-5575 (3/6/18)
                     – Not every location needs to be barrier free for access
                       by the disabled or be large enough to accommodate
                       all members of public who wish to attend
                     – Signage does not need to be posted in each location
                     – Executive session- participants using
                       videoconferencing may be asked to supply an
                       affidavit that no one else was present during
                       executive session

(c) 2018 NYS School Boards
Association, Inc.                                                               2
Bilingual Election Requirements
                   • 52 USC § 10503 designed to ensure greater
                     participation of language minorities in elections
                   • Applicable to states and political subdivisions as
                     designated based upon 2010 Census data
                   • Language minorities=
                      – American Indian, Asian American, Alaska Natives or
                        of Spanish heritage

                    Bilingual Election Requirements
                   • If designated based on census data then voting
                     materials must be provided in the minority
                     language
                      – Registration forms and instructions
                      – Voting notices (annual meeting notice, 6 day budget
                        notice)
                      – Ballots and ballot instructions

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Association, Inc.                                                             3
Counting Ballots – No Voting Machine

                   • Count ballots to determine if agree with
                     number of names recorded on poll list.
                      – If exceed that number- chief inspector
                        withdraws at random ballots to reduce to
                        number of voters.
                          • Inspectors then count remaining ballots.
                   • Ballot box locked and sealed and deposited
                     with the district clerk.

                             Recent Chapter Laws
                   • L. 2018 Ch. 207: Mandatory pre-employment drug and alcohol
                     testing of school bus drivers; all bus drivers subject to random
                     testing (vs. federal rule)

                   • L. 2018 Ch. 233: DA must provide notice to Sup’t whenever
                     charges of sex offense requiring registration as sex offender filed
                     against a person known to be a school employee

                   • L. 2018 Ch. 214: District may make contributions to
                     municipality to cover cost of school crossing guards if results in
                     increase in number of crossing guards

(c) 2018 NYS School Boards
Association, Inc.                                                                          4
Kimberly A. Fanniff
                    Senior Staff Counsel

                    NEW YORK’S RESPONSE TO
                    THE #METOO MOVEMENT

                   2017 Sea Change for Harassment
                          in the Workplace
                   • Harvey       • Kevin
                     Weinstein      Spacey
                   • Matt Lauer • Al Franken
                   • Mario Batali • Charlie Rose

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Association, Inc.                                   5
Federal Law
                   • Title VII of the Civil Rights Act of 1964
                     – 42 USC § 2000e-2
                   • Prohibits discrimination in employment on the
                     basis of sex
                     – Includes discrimination in the hiring, termination,
                       demotion, or promotion of employees (relates to
                       compensation, terms & conditions of employment)
                     – Also prohibits retaliation against an employee or
                       applicant who makes a charge, or who testifies, assists or
                       participates in a Title VII investigation or action

                             Title VII Protections
                   • What does it mean to be discriminated
                     against on the basis of sex?
                     – Discrimination based on:
                        • Gender
                        • Non conformance to sexual/gender stereotypes
                        • Sexual orientation
                             – Zarda v. Altitude Express- Second Circuit Court of
                               Appeals found discrimination based on sexual
                               orientation is a form of discrimination based on sex

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Association, Inc.                                                                     6
New York Human Rights Law
                   • Executive Law § 296
                      – Prohibits discrimination in employment on the basis of
                        sex and sexual orientation
                   • 9 NYCRR § 466.13(c)
                      – Discrimination on basis of gender identity is sex
                        discrimination
                      – Sex as used in the human rights law = gender identity
                        and transgender status
                      – Harassment on basis of gender identity or transgender
                        status is sexual harassment

                          New York’s New Laws
                   • Governor Cuomo’s Women’s Agenda made reforms
                     regarding sexual harassment a priority. As part of
                     budget process new laws were adopted regarding:
                      – Model policy & training program for all NYS employers
                      – Ban on mandatory arbitration clauses
                      – Non-disclosure agreements only at the behest of the
                        complainant
                      – Protection of non-employees (i.e. independent
                        contractors) from sexual harassment
                      – Individual employee liability

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Association, Inc.                                                                7
Individual Employee Liability
                   • If an employee is subject to a final judgment of
                     individual liability for sexual harassment and a
                     public employer pays the judgment the
                     employee is responsible for reimbursing the
                     employer for the employee’s designated share of
                     the liability
                     – Law includes mechanisms for employer to recoup
                       the money if it is not repaid within 90 days

                    Protections for Non Employees
                   • Executive Law § 296-d provides an employer
                     may be liable if the employer fails to take
                     corrective action when it knew or should have
                     known that an independent contractor was
                     subject to sexual harassment in the employer’s
                     workplace.

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Association, Inc.                                                       8
Arbitration Clauses
                   • Employment contracts, including collective
                     bargaining agreements, often include an
                     arbitration clause which requires the parties
                     to the contract to utilize an independent
                     arbitrator to resolve disputes prior to filing
                     a lawsuit.

                                  CPLR § 7515
                   • Prohibits contracts entered into after July 11,
                     2018 from containing a mandatory arbitration
                     clause addressing sexual harassment claims
                     unless inconsistent with provisions of federal
                     law.
                     – If there is conflict between collective bargaining
                       agreement and this law, the CBA will be controlling
                        • But when CBA expires such clause may not be included

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Association, Inc.                                                                9
Nondisclosure Agreements
                   • Effective July 11, 2018 the General
                     Obligations Law § 5-336 and CPLR §
                     5003-b prohibit inclusion of non disclosure
                     agreements in settlements, agreements, etc.
                     entered into to resolve sexual harassment
                     complaints unless the nondisclosure clause
                     is the wish of the complainant.

                      Nondisclosure Agreements
                   • All parties will be given 21 days to consider the
                     terms of the nondisclosure agreement
                   • If the complainant agrees to the nondisclosure
                     terms it will be memorialized in an agreement
                     separate from the settlement
                   • Complainant has 7 days from the execution of
                     the nondisclosure agreement to revoke the
                     agreement

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Association, Inc.                                                        10
Model Policy and Training Program
                   • Draft Model Policy issued   • Annual training program
                     at end of August              must be implemented
                   • Public comment be           • Training of all employees
                     received until September      that comports with model
                     12, 2018                      training program must be
                   • Statute requiring policy      completed by January 1,
                     and training program          2019
                     effective October 9, 2018   • Training can be in person
                   • Policy must be                or web based provided it
                     prominently posted &          meets requirement that it
                     given to all employees        be interactive

                                    Model Policy
                   • 6 major areas               • Introduction
                     within the draft            • Defines sexual
                                                   harassment
                     model policy issued
                                                 • Defines retaliation
                     by the Dep’t of             • Reporting harassment
                     Labor in                    • Supervisory
                     consultation with             responsibilities
                     Division of Human           • Legal protection and
                     Rights                        external remedies

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Association, Inc.                                                              11
Draft Policy- Introduction
                   • The draft policy introduction clearly states the policy
                     applies to employees, interns, applicants & 3rd parties
                   • Sexual harassment will not be tolerated and any
                     individual found to have engaged in such behavior will
                     be subject to remedial and/or disciplinary action
                   • Employees & supervisor who engage in or knowingly
                     allow sexual harassment to continue will be penalized
                     for misconduct and potentially subject to individual
                     liability

                          Model Complaint Form
                   • Each employer must also provide a complaint
                     form whenever the policy is distributed.
                   • Complaints may be made orally or in writing
                      – If employee does not want to submit written form
                        than the person to whom employee made report
                        must fill out the complaint form based upon
                        information received

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Association, Inc.                                                              12
What is sexual harassment?
                   • Unwelcome conduct which is either of a sexual nature
                     or directed at the individual because of the individual’s
                     sex when:
                      – Conduct has purpose or effect of unreasonably interfering
                        with individual’s work performance or creating
                        intimidating, hostile or offensive work environment
                      – Conduct is explicitly or implicitly a term & condition of
                        employment
                      – Submission to or rejection of such conduct is used as a
                        basis for employment decisions

                      Draft policy examples of harassment
                   • Physical assaults of sexual nature
                      • Ranging from unwanted touching, brushing against another’s
                        body to criminal behavior
                   • Unwanted sexual advances or proposition
                      • Requests for sexual favors paired with implied or overt
                        threats to victim’s job status
                   • Sexually oriented gestures, noises, remarks, jokes, or
                     comments which create a hostile work environment

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Association, Inc.                                                                    13
Draft policy examples of harassment
                   • Sexual or discriminatory displays of publications
                     anywhere in workplace
                      – Materials that are sexually demeaning or pornographic
                        includes display on workplace computers and cell phones
                   • Hostile actions taken against individual because of his
                     or her sex, sexual orientation, gender identity or status
                     of being transgender
                      – Interfering with/destroying a person’s work space, tools or
                        property
                      – Sabotaging an individual’s work
                      – Bullying, yelling, name calling

                    Where can harassment occur?
                   • Draft policy makes clear that harassment is
                     not limited to the physical workplace itself
                      – While employees traveling on business
                      – At employer sponsored events or parties
                      – Calls, texts, emails and social media usage by
                        employees can also constitute workplace
                        harassment even if they occur away from
                        workplace and not during regular work hours

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Association, Inc.                                                                     14
Retaliation Prohibited
                   • Draft policy details that any action which would keep a
                     worker from coming forward and/or to support
                     another’s claim of harassment can be retaliation.
                     Protected activities include:
                      – Filing a complaint internally or with an outside agency
                      – Testifying or assisting in any proceeding involving sexual
                        harassment
                      – Opposing harassment by making verbal or informal
                        complaint
                      – Complaining that another employee has been harassed or
                        encouraging another employee to report harassment

                       Duty to report harassment
                   • Any employee, intern, or non employee who has been
                     subjected to harassment is encouraged to report
                   • Anyone who witnesses or becomes aware of
                     harassment should report it to a supervisor, manager or
                     employer-designated individual
                   • All supervisors & managers who receive a complaint or
                     witness what may be harassing behavior or for any
                     reason suspect harassment is occurring are required to
                     report harassment to designated person or office

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Association, Inc.                                                                    15
Investigations
                   • All complaints or information of suspected
                     harassment will be investigated whether received
                     verbally or in written form
                   • Investigation will be confidential to extent
                     possible
                   • Must be completed within 30 days
                   • All persons involved will be accorded due
                     process to protect right to fair and impartial
                     investigation

                              Investigatory Steps
                   • Designated office or person will conduct review and
                     take interim actions as appropriate
                   • Obtain and preserve documents, emails, phone records
                   • Review documents
                   • Interview all parties involved
                   • Written documentation of investigation
                   • Promptly notify all parties of final determination and
                     implement any corrective action necessary
                   • Notify victim of right to file a complaint or charge
                     externally

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Association, Inc.                                                             16
Legal Protections & External Remedies
                   • NYS Division of Human Rights
                      – Complaint must be filed within 1 year
                   • U.S. Equal Employment Opportunity
                     Commission
                      – Complaint must be filed within 300 days
                   • Local protections (ex. NYC Human Rights Law)
                   • Local police if harassment constitutes criminal
                     behavior

                               Training Program
                   • All existing employees must be trained by January 1,
                     2019
                   • Draft FAQ- All newly hired employees must be trained
                     within 30 days of start date
                   • Training should be modified to reflect specific
                     employer policies or practices while still meeting
                     minimum elements of training
                   • Training must detail the internal processes available for
                     filing a complaint and include specific contact
                     information

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Association, Inc.                                                                17
Minimum training requirements
                   • Be interactive
                      – If web-based: questions asked of users
                      – Accommodate questions asked by employees at in person
                        trainings
                      – Live trainer available to answer questions
                      – Require feedback from employees about training and
                        materials presented
                   • Include explanation of sexual harassment consistent
                     with DHR guidance
                   • Include examples of unlawful sexual harassment

                     Minimum Training Requirements
                   • Include information about state and federal laws
                     and remedies available to victims of sexual
                     harassment
                   • Include information regarding employee’s right
                     of redress and all available forums for
                     complaints
                   • Include information addressing conduct by
                     supervisors and any additional responsibilities of
                     supervisors

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Association, Inc.                                                               18
Jeffrey Mongelli
                    Senior Staff Counsel

                    2018 ELECTION UPDATE

                      Annual Meeting & Election
                   • Date= 3rd Tuesday in May
                     – May be changed if submit request to
                       Commissioner no later than March 1 based
                       upon conflict with religious observance.

                     – Some elections for board members in the Big
                       5 districts take place at different dates and
                       times specified by law.

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Association, Inc.                                                      19
Voting on the School Budget
                   • Most school districts: at least 6 consecutive hours after
                     6:00 a.m., two hours of which must be after 6:00 p.m.,
                     as determined by school board resolution.

                   • Small city school districts: at least 9 consecutive hours,
                     beginning no later than 7:00 a.m., two hours of which
                     must be after 6:00 p.m., as established by board
                     resolution.

                                Place for Election
                   • Election held at the school(s) designated
                     for this purpose.
                      – If school not accessible or adequate then the
                        election may be held at anyplace within the
                        district suitable for the occasion.
                      – Must have adequate access and parking for
                        the disabled during the time the polls are
                        open.

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Association, Inc.                                                                 20
Opening the Polls
                   • Common School Districts- election called
                     to order by sole trustee or chairperson of
                     board thereafter the voters elect a qualified
                     voter to serve as chairperson.

                   • UFSD, Central and Small City- the board
                     appoints a qualified voter as chairperson
                     who declares polls open and closed.

                    • Activities Preceding Annual
                          Meeting & Election

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Association, Inc.                                                    21
Notice of Annual Meeting
                   • Published 4 times in seven weeks
                     preceding election in 2 newspapers with
                     general circulation.
                      – 1st publication at least 45 days prior to
                        election
                      – Newspaper general circulation published at
                        least weekly, paid circulation
                      – Fees charged are governed by law

                          Contents of Notice of Annual Meeting

                   • Date, time & place of annual meeting
                   • Date, time & place of budget hearing
                   • Information about when and where to obtain copies of
                     the budget during 14 days preceding budget vote and
                     on day of vote.
                   • Due date for filing of nominating petitions
                      – Between 9 and 5 pm no later than 30 days before election
                      – Nominees have until 20 days before election to file in small
                        city school districts

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Association, Inc.                                                                      22
Contents of Notice of Annual Meeting

                   • Notice of any proposed tax, together with
                     a statement specifying both the purpose
                     and the amount of spending for which the
                     tax will be levied, where such tax is
                     proposed to finance items specified by law.
                   • Where required by law substance of
                     specific propositions to be voted on.

                          Contents of Notice of Annual Meeting

                   • Statement about applying for absentee ballots and that
                     the list of persons issued absentee ballots will be
                     available for inspection at clerk’s office each of 5 days
                     before election (excluding Sunday).

                   • Time and place board of registration will meet and
                     notice that the register will be available for inspection.
                     (if have personal registration)

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Association, Inc.                                                                 23
Public Hearing on the Budget

                  •    At least 7 days but not more than 14 days prior to the
                       annual meeting and election or special district meeting
                       at which the school budget vote will occur.

                  •    Quorum of the board is not required as the purpose is
                       to present to the voters the proposed school budget
                       for the upcoming school year.

                  •    If hold a re-vote must give notice of date, time and
                       place of budget hearing to be held prior to re-vote.

                                    Budget Notice
                   • Following the public hearing, school district must mail to all
                     qualified voters in the district a school “Budget Notice”, no
                     later than six days prior to the annual meeting and election
                     or special district meeting at which the school budget vote
                     will occur.

                   • Content of the budget notice is dictated by law and includes
                     information regarding a school district’s property tax levy
                     limit & projected contingency budget.

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Voter Propositions
                   • Districts using voting machines must have policy on
                     submission of propositions.
                      – Specify minimum number of signatures
                      – Voters not required to list address
                   • Must be filed with the board at least 30 days in advance
                     of election unless required by law to be in notice of
                     annual meeting.
                      – Board can set reasonable deadline for submission of
                        propositions relating to topics required to be included in
                         notice of annual meeting.

                        Acceptance of Voter Propositions
                   • Board determines if propositions conform with policy and law in
                     order to be on ballot.

                   • Once issue has been placed before voters in particular year board
                     may refuse to place issue on ballot again in same year; nor does
                     the board have to place conflicting propositions on the ballot.

                   • May reject propositions not within power of voters or if
                     proposition fails to state amount of money required for
                     proposed expenditure.

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Association, Inc.                                                                        25
Commissioner’s Decision
                   • Appeal of McNamee (17,103):
                   • Petitioner challenged the refusal by the
                     board to place a proposition before the
                     voters at the annual meeting to increase the
                     number of board members.
                   • Board rejected the proposition 3-2.
                     Proposition did not specify the amount for
                     which voter approval was sought.

                   • “any proposition may be rejected by the …
                     board of education if the purpose of the
                     proposition is not within the power of the
                     voters, or where the expenditure of money
                     is required by the proposition, if the
                     proposition fails to include the necessary
                     specific appropriations.”

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Association, Inc.                                                   26
• Petitioner: argued that there wasn’t enough
                     time to obtain the requisite signatures
                     before the deadline to submit.
                   • Commissioner rejected this argument and
                     noted that “petitioner had sufficient time
                     prior to the March 18 deadline to revise the
                     petition and obtain the requisite number of
                     signatures …”

                             Improper Advocacy

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Association, Inc.                                                   27
Legal Restrictions
                              on Promoting the Budget

                   School districts may not use district resources or
                   personnel to exhort the voters to support the school
                   budget. However, a school district may disseminate
                   factual information reasonably necessary to educate the
                   public.

                   •     This prohibition extends to statements that do not specifically
                         urge a yes vote but nonetheless persuade or convey support
                         for a particular position, and to actions that technically do not
                         violate the law, but create the appearance of impropriety.

                   Advocacy by Individual Board Members
                           and School Officials
                   • Must ensure teachers and staff do NOT communicate
                     partisan positions to students on school time.
                   • Staff may be prohibited from wearing political buttons
                     in the classroom
                   • In your PERSONAL capacity you can actively support
                     proposed budget but must be:
                       – At own expense
                       – Avoid giving impression speaking on behalf of board or
                         district

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Association, Inc.                                                                            28
Use of District Facilities and Channels
                             of Communication
                   • Cannot allow district facilities or channels of
                     communication to be used by third parties to engage in
                     promotional activities

                      – PTA should not send home flyers urging passing of budget in
                        student backpacks

                      – Unions cannot use mailboxes or email to promote candidates
                        it supports for board even if CBA authorizes use of
                        mailboxes or email generally

                                        Targeting
                   • Appeal of Sidmore (17,225): Petitioner
                     asserted that by holding the annual budget and
                     election on the same day as the dinner event
                     the board sought to increase “participation of a
                     ‘targeted’ group of voters.”
                   • Petitioner alleged that this group “was likely to
                     vote in favor of the proposition since their
                     child(ren) benefit directly by the capital
                     improvements.”

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• Commissioner denied the appeal noting that
                     the petitioner failed to carry her burden of
                     proving that only students and the families of
                     students were given notice of the event.
                   • Be careful not to “target” a selective list of
                     potential voters who might be more inclined to
                     support the budget than other groups.
                   • Notice should be given to all district residents
                     “in the same manner.”

                             Post Card and Brochure
                   • Appeal of Flippen (17,296): District invited
                     parents to visit the high school and observe
                     their child’s learning experience.
                   • Post card notified residents of public meetings
                     to be held in December and January regarding
                     the bond as well as the date of the bond vote.
                   • District mailed a four page color brochure to
                     district residents regarding the bond vote.

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• Proceedings of a district meeting are not
                     invalidated for want of due notice unless
                     the omission of notice is willful or
                     fraudulent – district corrected issue.
                   • Law establishes the qualifications of an
                     election chairperson and requires only that
                     the chairperson be a qualified voter in the
                     district.

                   • District’s brochure complied with the
                     Education Law which provides that an
                     absentee ballot shall not be canvassed
                     unless it is received in the office of the
                     district clerk “not later than five pm on the
                     day of the election.”
                   • Postal card and brochure were both
                     informational in nature.

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• Petitioner claimed that the board member, at a
                     school basketball game, improperly interjected
                     into the conversation to argue for voting in
                     favor of the proposition.
                   • “Individual board members are entitled to
                     express their views about issues concerning the
                     district and engage in partisan activity, provided
                     school district funds are not used.”

                                         Signs
                   • Appeal of Herloski (17,361): Signs included the
                     slogans: “Supporting Our Public Schools” and
                     “ACT for Education” (the ACT4ED sign), and
                     contained a URL for the website:
                     ACTforEducation.org.
                   • Building principals in the district ordered the
                     ACT4ED signs in April of 2017 and placed
                     them at various public schools throughout the
                     district.

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• Petitioner’s position was that the district’s purchase and
                     display of the signs constituted improper use of district
                     funds to advocate a partisan position.
                   • “although the ACT4ED signs were placed in close
                     physical and temporal proximity to the May 2017
                     budget vote, the signs convey facially neutral
                     information and did not constitute improper partisan
                     activity under the circumstances.”
                   • However, in the future the signs should be displayed in
                     a time and manner which does not suggest improper
                     advocacy for the school budget

                      Voting at District Elections

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Qualified Voters
                   •   Age 18
                   •   U.S. Citizen
                   •   Resident for 30 days
                   •   Not otherwise prohibited from voting (ex.
                       mentally incompetent or convicted felon)

                   • Owning a home in district does not make owner a
                     resident (home must be permanent residence)

                         ELECTION OF SCHOOL
                           BOARD MEMBERS

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Qualifications of Board Members
                   • Ability to read & write             • Not removed from any
                   • Qualified voter                       district office in preceding
                   • Citizen of U.S.                       year
                   • At least 18 years old               • Cannot reside with another
                                                           board member of same
                   • Not incompetent                       family
                   • A resident of district for period   • Not current employee of
                   of 1 year immediately before            district
                   election                              • Cannot simultaneously hold
                                                           incompatible office

                         Qualifications of Board Members
                   • School board may not impose additional eligibility
                     requirements for board office.

                   • Former employee of school district may serve on
                     board.

                   • No prohibition against employment of spouses,
                     children or other relatives of candidates or board
                     members.

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Nominations
                   • Specific Seat v. At Large Voting
                      – Generally nominating petitions are for specific seats
                      – Voters may adopt proposition to make each
                        nominee eligible for every vacancy

                   • Small Cities- board members run at large unless
                     voters adopt proposition for specific seats

                             Nominating Petitions
                   • Must be signed by at least 25 qualified voters or 2% of
                     number of voters in previous annual election whichever
                     is greater.
                      – Small Cities- signed by 100 qualified voters

                   • Must include candidate’s name, residence and
                     residences of voters who sign petition.
                      – If specific seat must identify seat for which candidate is
                        running (name of incumbent and length of term).

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Acceptance of Petitions

                   • Reject petitions if:
                     – improperly filed,
                     – candidate ineligible for office
                     – unwilling to serve or
                     – untimely filed
                   • School board determines if board
                     candidate is eligible to serve.

                             Write-in Candidates
                   • All ballots must have one blank space for
                   each vacancy on board.
                     – Do not need to place check mark next to name
                       written into ballot.
                     – Minor misspellings should be credited to candidate
                       unless another resident same or similar name.
                     – If no candidates or not enough candidates seats
                       filled by individuals with most write-in votes.

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Absentee Ballots

                   Availability of Absentee Ballots
                   • Absentee ballot provided to any voter who
                     cannot vote in person due to:
                     – Illness
                     – Physical disability
                     – Hospitalization
                     – Incarceration (unless for felony)
                     – Travel outside area for business, studies or
                       vacation

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Absentee Ballots
                  • Dual homeownership does not entitle a person to an
                    absentee ballot- only 1 legal residence.

                  • Must automatically mail absentee ballot to each voter
                    whose registration record is marked permanently
                    disabled (application not required).

                  • Board of elections must send inspectors to nursing
                    homes to supervise if 25 or more absentee ballots
                    requested from home.

                     Applying for Absentee Ballot
                   • Information that must be included on absentee ballot
                     application is set by statute.

                   • Application must be received at least 7 days before
                     election if it is to be mailed to voter or the day before
                     the election if it is to be issued to voter in person.

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Issuing Absentee Ballot
                   • Upon receipt of application, board of
                     registration or district clerk reviews and
                     determines if entitled to vote by absentee ballot.

                   • Board of Registration/District Clerk must make
                     list of all persons issued an absentee ballot and
                     have it available for public inspection during
                     regular office hours of district clerk.

                     Absentee Ballots in Districts without
                            Personal Registration
                   • Qualified voter may request absentee ballot
                     by signed letter rather than application.
                      – Letter must be received between 30 and 7
                        days before election.
                      – Upon receipt clerk sends both application and
                        ballot to voter at same time.
                      – Voter must return both for ballot to be
                        counted.

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Challenging Absentee Ballots
                   • Any qualified voter may, prior to election, file a written
                     challenge to person who appears on list of absentee
                     voters.
                      – Cannot wait until after election to challenge
                   • In districts with personal registration cannot
                     open/count ballots before polls close.
                   • Candidates and or poll watchers not required to be
                     present during canvass.

                         Commissioner Decisions
                   • Board of Education of the Hilton CSD
                     (17,091): Petitioner (district) sought an order
                     annulling the results of a district meeting,
                     recanvassing the votes, and certifying the final
                     election results.
                   • Absentee ballots contained the instructions
                     including: “Any mark in a voting bubble other
                     than a complete fill will render the ballot void
                     (emphasis in original).”

(c) 2018 NYS School Boards
Association, Inc.                                                                 41
The scan ballots were
                                 counted as follows:
                   •   Pickering – 941          • Malsegna – 503
                   •   Hilburger – 969          • Hudson – 662
                   •   Byer – 670               • Cutrona – 579
                   •   Ames – 660

                   Write in votes on the scan
                   ballots :                    Affidavit ballots:
                   •   Pickering – 2            •   Pickering – 5
                   •   Ames – 3                 •   Hilburger – 4
                   •   Malsegna – 3             •   Byer – 4
                   •   Hudson – 1               •   Ames – 1
                   •   Cutrona – 3              •   Malsegna – 2
                                                •   Hudson – 4
                                                •   Cutrona – 2

(c) 2018 NYS School Boards
Association, Inc.                                                    42
• Absentee Ballots: 38 absentee ballots
                     received, 4 were not counted because they
                     were returned unsigned. Of the remaining
                     34, seven were excluded because they had
                     been marked incorrectly. Specifically, the
                     voters did not completely fill in the
                     bubbles next to the candidates’ pre-printed
                     names.

                       Final tally on the night of 5/17/16:
                   •   Hilburger – 991
                   •   Pickering – 964
                   •   Byer – 683
                   •   Ames - 682
                   •   Hudson – 672
                   •   Cutrona – 602
                   •   Malsegna – 521

(c) 2018 NYS School Boards
Association, Inc.                                                  43
• Assistant superintendent found out that the 7
                     absentee ballots had been excluded.
                   • Given that the intent of the voters was
                     discernible from the markings on each ballot,
                     the assistant superintendent believed that the
                     ballots were wrongly excluded.
                   • Assistant superintendent reopened the ballot
                     box and counted the 7 previously excluded
                     ballots.

                   • Commissioner: District should not have opened
                     the ballot box. Should have immediately
                     commenced an appeal for an order directing the
                     ballot box to be opened.
                   • “I cannot find that a second count of ballots held
                     after the discovery of the error and before official
                     results are declared, is such an irregularity as to
                     warrant the setting aside of an election.”
                   • The 7 absentee ballots should have been counted
                     because the voters’ choice of candidates were
                     readily discernible.

(c) 2018 NYS School Boards
Association, Inc.                                                           44
Lessons from a Mock
                             Board Meeting

                                  Questions?
                   •   Phone: 518-783-0200 or 800-342-3360
                   •   Email:
                   •   Kimberly.fanniff@nyssba.org
                   •   Jeffrey.mongelli@nyssba.org

(c) 2018 NYS School Boards
Association, Inc.                                            45
Scene I: The Jacksonville Board of Education is a five member board. The board has just gathered in
public and the members are casually chatting amongst themselves. The pledge of allegiance has been
recited, the public is seated. Let’s join together and watch what unfolds.

What actions of the board were problematic?

What actions of the board satisfied legal requirements?
2018 DISTRICT CLERK WORKSHOP
                                   NOTES

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Scene II: A motion was made in public session to enter executive session to discuss the status of
collective bargaining negotiations between the district and the teachers’ association- the motion
unanimously passes. The members are in executive session with the superintendent and district clerk
also being present. Ms. Green is attending executive session by videoconferencing. Two other
individuals will join the executive session as well.

What actions of the board were problematic?

What actions of the board satisfied legal requirements?
2018 DISTRICT CLERK WORKSHOP
                                   NOTES

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Scene III: The board is in public session with four members physically present at the meeting location in
the district. A fifth member of the board, Mrs. Green, is videoconferencing from another location.

What actions of the board were problematic?

What actions of the board satisfied legal requirements?
2018 DISTRICT CLERK WORKSHOP
                                   NOTES

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Scene IV: The board of education has reached the portion of its meeting where it receives comments
from the public. After the public comment portion the board moves on to one last agenda item,
appointment of a probationary teacher.

What actions of the board were problematic?

What actions of the board satisfied legal requirements?
2018 DISTRICT CLERK WORKSHOP
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