Published from California Special Districts May-Jun 2014
By Brooke Miller, Partner, Best Best & Krieger
As a leader of a special district, you undoubtedly wear several hats. Unfortunately, one hat you may not be prepared to wear is that of a referee. Let’s face it – boards don’t always agree, and bad things do happen. When conflicts arise, you may find yourself in the middle. Without a rule book to guide you during a board crisis, you may have to rely upon your instincts. There are, however, some ways to prepare for and handle the inevitable conflict – and those who cause them - that may make your role as ref/crisis manager a little easier.
The Disruptor
Each board member is equipped with a “unique” personality. At some point, you will likely come across at least one who unintentionally, or otherwise, is disruptive. A crisis may occur when said board member demands control over meeting agendas or becomes disruptive during public meetings.
It is vitally important to set and follow a clear precedent as to how meetings should be run. For example, you may ask your board chair or president to remind the public and board at the start of the meeting that public comment is not a Q&A session, and that the reasonable limits your district has adopted (such as a three-minute limit per person) will be strictly (and fairly) enforced. In some cases, disruptive board members may legally be removed from meetings; in most cases, taking a recess and explaining important protocols when you resume, is probably enough.
It may also be helpful to adopt additional board policies regarding civility and the orderly conduct of meetings; making sure your Disruptor participates in making these rules may encourage him to actually follow them. Staff who interact with the board during meetings should have a firm understanding of the protocols and procedures in place to ensure orderly conduct, and should make a specific effort not to engage a Disruptor to create additional conflict. Keeping calm and professional goes a long way.
The Splitter
When the unique personalities of board members come together, it isn’t always smooth sailing. Conflicts can arise due to differing agendas or philosophies on particular issues, general goals and values, or simply due to personality conflicts (or all three!). A divided board can be a big problem when there’s a major issue to face.
Of course, it’s best to try to get board splits under control before major decisions come up. Training and team-building exercises, such as holding a workshop (publicly noticed, of course) to consider the district’s overall goals—not just each individual board member’s goals—can help unite your board; or at least help them understand that their goals may not be so different from other board members. The board president and staff should make all board members feel heard, not just the members of the current majority. Board members may resign, term out or switch sides, but treating each member fairly and respectfully is always best in the long run.
The Quitter
Some board members may handle a conflict by staying and fighting or they may “talk with their feet” by refusing to attend meetings or resigning. A majority of your board might even resign at the same time. The resulting vacancy(ies) can leave you with a hole to fill, and probably bigger problems to solve.
Legally speaking, a vacancy is created in an office when an officer ceases to discharge the duties of his office for a period of three consecutive months, except when prevented by sickness or absence from the state with the permission required by law. However, a vacancy is only created in this circumstance where the officer voluntarily or willfully ceases to discharge the duties of his office. If the officer is prevented from performing those duties, a vacancy will not occur. The common law also provides that an officer who manifests a clear intention to abandon the office and its duties, including by his conduct, may abandon his office. Note, however, that an officer whose seat is declared vacant due to his conduct does have legal avenues to challenge that declaration.
When a vacancy does occur, the district must act in accordance with the law to fill the vacancy. The first step is to advise the county elections official of the vacancy, which must occur within 15 days. The required actions can be taken by the remaining board members even if less than a quorum remains. In the meantime, it is important to take steps to acknowledge and try to remedy the circumstances that led to the abandonment or resignation before the rest of your board follows suit.
The Terminator
Board members who take their role seriously are typically good board members. It is when a board member takes the role too seriously that problems arise. Consider the board member who is demanding or critical to your hardworking staff. This board member might even take it upon himself to direct staff, insist on reviewing staff or fire one or more staff members
Here is another area where setting and following clear policies and precedent is key. In most agencies, most staff members do not report directly to the board. District policies should establish that the general manager is the point of contact to direct, review, discipline and/or terminate staff, following employment policies duly considered and adopted by the district. Establishing a clear chain of command will help avoid confusion and make sure your greatest resource—your staff—is used efficiently.
The Rule Breaker
The ethical rules for serving on a board can be confusing. When a board member misunderstands – or blatantly ignores – the rules regarding a personal financial interest in a decision or contracts before the board, it can lead to problems. When a conflict of interest arises, crisis can follow.
Depending on the facts, this type of crisis can be the “worst-case scenario,” landing the district (and individual board members) in both legal and political hot water. The absolute most important thing you can do to avoid this situation is to make sure board members receive legally required training in the ethics rules governing their decision-making. Although it may be easy, online training just isn’t enough. Ethics training should be interactive, letting board members ask questions to make sure they “get” the rules and opening up the lines of communication about potential ethical issues—making it a perfunctory, check-the-box experience does not convey the critical importance of learning and following the ethics rules.
The Tattletale
When a board member uses poor judgment as to when to keep quiet, liability can result. Take, for example, the board member who makes unauthorized representations that could incur liability to your district or breaches confidentiality such as disclosing information or documents distributed in closed session to third parties or even to the press. And then there is the board member who makes slanderous or libelous statements from the dais. Your job as ref/crisis manager just got even harder!
This is another type of crisis that can open the district or an individual board member to legal liability. Many of the tips above, such as adopting clear rules of civility and orderly conduct of meetings, making all board members feel heard, and ensuring board members receive proper training on their roles and duties, are useful in helping to avoid this scenario.
The board acts as a whole, not as a collection of individual officers. The Tattletale either does not clearly understand his role as an individual board member, or is willfully attempting to usurp power from the rest of the board. In either case, this type of board member should be reined in as soon as possible to avoid liability. This is one instance where censure may be a useful tool to convey to both the public and the board the gravity of the transgression.
Whether you feel like a referee, crisis manager, negotiator or psychiatrist when it comes to dealing with board members, being prepared to handle whatever crisis your board may throw at you can make the situation more bearable. When in doubt as to how to handle a situation, don’t forget to reach out to others for help. Your human resources department may be well equipped to jump in, as they have been trained to deal with similar situations. Your legal counsel can provide solid advice as well as serve as a buffer. And your peers/leaders of other special districts can prove to be a great source of support as well as lend a sympathetic ear.
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