legal
Board self-evaluation and the Brown Act
A common goal among California school boards is the continuous improvement of students’ academic performance. If for no other reason than that, every school board should lead the district or county office of education it serves by example and set a goal of continuous improvement in the performance of its leadership functions. Such continuous improvement will usually require a periodic review of the board’s goals and/or objectives, the factors that inspired their development and the efforts invested in achieving them, as well as a comprehensive discussion of desired outcomes and whether they are being achieved. In other words, a periodic review by way of self-evaluation is essential to the overall success of each school board.

A self-evaluation involves setting a time when board members may engage in an examination of the board’s performance on an agreed set of norms, conditions or yardsticks. The main focus of a board self-evaluation should be on the board as a whole, not individual members. A board self-evaluation should not be seen by board members as an opportunity to express personal grouse or discontentment with their fellow board members. Keeping focus on the task may require facilitation, preferably by an experienced and independent moderator who can also assist the board to develop protocols that will enhance the governance team’s performance in identified areas.

Though a board self-evaluation is not required by law, it must be conducted within the dictates of applicable law. Like in many situations where a majority of a board congregates, a board self-evaluation, regardless of the label placed on it (work session, workshop, seminar, etc.), is a meeting of the board, and the Brown Act (Government Code 54950-54963) will apply whenever it takes place. Two pertinent questions arise when scheduling a board self-evaluation: (1) should a board self-evaluation be conducted at a regular meeting or at a special meeting and (2) can a board self-evaluation be held in closed session?

Regular or special meeting?
A special meeting is recommended. Some requirements associated with regular meetings render it much less effective for an endeavor as time-consuming as a self-evaluation. For example, a regular meeting agenda is, by law, required to include an opportunity for public comments, not only on items on the agenda but also on matters that are not on the agenda but are within the board’s jurisdiction. Providing for such public comments, along with the many items addressed in a regular meeting agenda, will inevitably limit the time available for a self-evaluation.

Calling a special meeting for a board self-evaluation would confer the benefits of a regular meeting while avoiding the hinderances of a regular meeting. With the notable exception that a board may not call a special meeting regarding the salaries, compensation or fringe benefits of agency executives, such as a superintendent or assistant superintendent, a special meeting can be used for all of the same purposes as a regular meeting — to hear, discuss, deliberate or take action on any item within the board’s subject matter jurisdiction (see Government Code 54952.2). The advantage of the special meeting lies in the legal requirements specific to it. A notice of a special meeting must state the business to be transacted at the meeting. According to Government Code section 54956, only that business may be considered at the meeting. In addition, Government Code section 54954.3 requires an opportunity for public comment only on items described in the notice for the meeting, thus making more time available to the board to self-evaluate.

As a board considers using a special meeting for this purpose, some caution is appropriate. Special meetings, by their very nature, tend to be used for urgent matters or matters with particular deadlines that cannot wait until the next regular meeting. A more lax posting requirement for the notice of a special meeting points to this; only 24 hours versus 72 hours for a regular meeting. Because a deliberate undertaking such as a self-evaluation will likely not qualify as “urgent,” it is advisable that when a board calls a special meeting for that purpose, the notice for that meeting meets the posting requirement for a regular meeting — at least 72 hours before the meeting. The board is authorized to do so pursuant to Government Code section 54953.7.

Open or closed session?
Unequivocally, a board self-evaluation is a matter for open session. In order to promote public trust, the Brown Act requires the meetings of legislative bodies of local agencies, such as governing boards of school districts and county offices of education, to be open to the public. However, the Brown Act exempts specific situations from this requirement. According to Government Code section 54962, compliance with Brown Act requirements for open and public meetings is required except with respect to situations expressly exempted by the Brown Act itself and other circumstances specified in the Education Code. Since neither the Brown Act nor the Education Code exempts a board self-evaluation from the open meeting requirement, holding a closed session for a board self-evaluation will violate the Brown Act.

There has been confusion in some quarters that because evaluations of employee performance are permitted in closed session, a board’s self-evaluation may also be a proper item for closed session. This is not the case. The confusion seems to emanate from an incomplete reading of Government Code section 54957, which permits a closed session “to consider the appointment, employment, evaluation of performance, discipline,… of a public employee….” However, Government Code 54957 includes a definition of “employee” for the purpose of that particular provision, and that definition expressly excludes any elected official or member of a legislative body.

For any board that needs help for its self-evaluation, CSBA offers an electronic Board Self-Evaluation tool and board development coaching and guidance services that can be tailored to the board’s particular needs. Questions regarding legal requirements applicable to board meetings should be directed to the district’s legal counsel.

Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your legal counsel for questions related to this information.

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