“5 Fundamentals of South Dakota’s Open Meetings Law” School Administrators of South Dakota April 5, 2016

5 FUNDAMENTALS OF OPEN MEETINGS LAW FUNDAMENTAL #1 Purpose of Law

5 FUNDAMENTALS OF OPEN MEETINGS LAW ■ What is the purpose of South Dakota’s Open Meetings Law? ■ Public is entitled to know and participate

5 FUNDAMENTALS OF OPEN MEETINGS LAW ■ Apply to School Districts? ■ ”Presumption of Openness”

5 FUNDAMENTALS OF OPEN MEETINGS LAW FUNDAMENTAL #2 Regular Meetings

5 FUNDAMENTALS OF OPEN MEETINGS LAW ■ ”Official Meeting” ■ Legal Quorum ■ Public Business Discussed

5 FUNDAMENTALS OF OPEN MEETINGS LAW ■ Proposed Agenda ■ 24-Hour Notice ■ Notice Posted - District Office and Website ■ Date, Time, Location

5 FUNDAMENTALS OF OPEN MEETINGS LAW FUNDAMENTAL #3 Special Meetings

5 FUNDAMENTALS OF OPEN MEETINGS LAW ■ Notice Delivered in Person, Mail, , or Telephone Telephone ■ Members of Local Media ■ Requested Notice

5 FUNDAMENTALS OF OPEN MEETINGS LAW “... To The Extent That Circumstances Permit” Circumstances Permit”

5 FUNDAMENTALS OF OPEN MEETINGS LAW FUNDAMENTAL #4 Executive Session

5 FUNDAMENTALS OF OPEN MEETINGS LAW ■ Majority Vote of Members ■ Personnel Issues ■ Student Performance/Discipline/Eligibility ■ Communications With Legal Counsel

5 FUNDAMENTALS OF OPEN MEETINGS LAW ■ Proposed or Pending Litigation ■ Employee Contract Negotiations ■ FERPA

5 FUNDAMENTALS OF OPEN MEETINGS LAW FUNDAMENTAL #5 Violations

5 FUNDAMENTALS OF OPEN MEETINGS LAW ■ Open Meetings Law Violation? ■ Class 2 Misdemeanor ■ Open Meeting Commission Reprimand

“5 Fundamentals of South Dakota’s Open Meetings Law” School Administrators of South Dakota April 5, 2016

“Responding to a Subpoena” School Administrators of South Dakota April 5, 2016

RESPONDING TO A SUBPOENA What is a Subpoena?

RESPONDING TO A SUBPOENA ■ Judicial Command to Appear and Testify ■ Judicial Command to Produce Specific Items Items ■ Sometimes Both

RESPONDING TO A SUBPOENA You’ve Been Served – Now What?

RESPONDING TO A SUBPOENA Know What You’re Dealing With ■ Student Records or Testimony? ■ Civil or Criminal Case? ■ Served on District or its Employees?

RESPONDING TO A SUBPOENA Know What You’re Dealing With ■ Child Custody Case ■ Abuse & Neglect Case ■ Criminal/Juvenile Case

RESPONDING TO A SUBPOENA Effective Communication

RESPONDING TO A SUBPOENA ■ Inform School Attorney ■ Provide Copy to School Attorney ■ Reasonable Time to Review Subpoena

RESPONDING TO A SUBPOENA ■ Subpoena Procedure in Place?

RESPONDING TO A SUBPOENA Maintain the Proper Perspective

RESPONDING TO A SUBPOENA ■ Request Protected Information? ■ Other Legal Protections? ■ FERPA ■ Courts Expect Compliance

RESPONDING TO A SUBPOENA ■ Good Relationship with Law Enforcement ■ FERPA Recognizes a “Balance” ■ FERPA Allows Disclosure ■ Parent Must Be Given Notice

RESPONDING TO A SUBPOENA ■ Parent Holds Rights Under FERPA – Not the School District the School District

RESPONDING TO A SUBPOENA Keys for Effective Subpoena Compliance

RESPONDING TO A SUBPOENA ■ FERPA Disclosure – “Judicial Order or Lawfully Issued Subpoena” Lawfully Issued Subpoena” ■ “Reasonable Efforts” to Notify Parents or Eligible Student Before Disclosure Eligible Student Before Disclosure ■ Case-by-Case Basis

RESPONDING TO A SUBPOENA ■ Send Notice in Writing ■ Telephone or ■ Create a Written Record of Response

RESPONDING TO A SUBPOENA ■ Encompass Multiple Students? ■ School Fight ■ Notify all Parents or Redaction?

RESPONDING TO A SUBPOENA ■ Privilege – SDCL ■ School Counselor or School Psychologist ■ Notify all Parents or Redaction?

RESPONDING TO A SUBPOENA Exceptions ■ Privilege Waived by Student ■ Information Made for Express Purpose of Being Made Public Being Made Public ■ Child Abuse/Physical or Mental Health in Jeopardy Jeopardy

“Responding to a Subpoena” School Administrators of South Dakota April 5, 2016

“Child Custody Law for School Administrators” School Administrators of South Dakota April 5, 2016

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS What is Custody?

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS ■ Circuit Court Determines Custody ■ “Best Interests of Child” ■ School Needs the Court Order

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS ■ Physical Charge and Control of Child (“Physical Custody”) ■ Supervising and Caring for Child (“Legal Custody”) (“Legal Custody”)

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS Custodial Parent ■ Child Lives With This Parent ■ Sole or Primary Custody

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS Noncustodial Parent ■ Right to Visitation With Child ■ South Dakota Parenting Guidelines ■ Child Support Obligation

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS ■ “Joint Custody” ■ Both Parents Maintain Full Parental Rights and Responsibilities and Responsibilities ■ Major Decisions

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS Rights of Noncustodial Parent?

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS ■ Court Order? ■ I nspect Child’s Educational Records ■ Receive School Records

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS ■ Consult With Teachers ■ Attend School Events ■ List or List Serve

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS What is a Guardianship?

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS ■ Requires Court Order ■ Allows Non-Parent to Exercise Care and Custody of Child Custody of Child ■ Parents Often Retain Some Rights

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS What is an Emancipated Minor?

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS ■ Age of Majority – 18 ■ Minor Can Become Emancipated If:

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS ■ Enters Into Valid Marriage ■ Active Duty With Armed Forces ■ Receives Court Order of Emancipation

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS What Should A School Do?

CHILD CUSTODY LAW FOR SCHOOL ADMINISTRATORS ■ Ask About Child Custody Arrangements ■ Obtain Most Recent Court Orders – Protects Parents Rights and Safeguards Protects Parents Rights and Safeguards Student Student ■ School Policies on Removing Students During School Hours During School Hours

“Child Custody Law for School Administrators” School Administrators of South Dakota April 5, 2016

“Facebook Firings: Social Media and Free Speech for School Employees” School Administrators of South Dakota April 5, 2016

FACEBOOK FIRINGS What Are The Issues?

FACEBOOK FIRINGS ■ Facebook Billion Users Worldwide ■ Twitter Million Users Worldwide ■ Google Million Users Worldwide ■ LinkedIn Million Users Worldwide

FACEBOOK FIRINGS “Old Way of Airing Grievances” “Old Way of Airing Grievances” ■ Private Conversations to Each Other, Family, Friends Family, Friends ■ Criticizing Students/Supervisors ■ Disagree With School Practices/Policies ■ Too Much To Drink Over Weekend

FACEBOOK FIRINGS “Old Way of Airing Grievances” “Old Way of Airing Grievances” ■ Comments Kept Private ■ School Officials Unaware of Grievances ■ Very Few Adverse Employment Actions

FACEBOOK FIRINGS “New Way of Airing Grievances” “New Way of Airing Grievances” ■ Grievances Posted On-Line to Large Groups ■ Billboard to the World ■ Several Adverse Employment Actions

FACEBOOK FIRINGS Examples

■ Opposition to Same Sex Marriage Law ■ ”Warden” Overseeing “Future Criminals” ■ Inappropriate “Likes” on Facebook ■ Supporting a School District Opt-Out ■ Inappropriate Communication With Student

FACEBOOK FIRINGS Legal Principles

FACEBOOK FIRINGS ■ Pickering v. Board of Education (1968) ■ First Amendment Does Not Protect All Employee Speech Employee Speech ■ Teacher Writes “Letter to the Editor” ■ Criticizes District’s Handling of Bond Issue

FACEBOOK FIRINGS ■ Teacher Dismissed ■ Speech Protected – “Speaking as a Citizen on Matters Of Public Concern” on Matters Of Public Concern” ■ ”Balancing Test of Competing Interests”

FACEBOOK FIRINGS Interests of Teacher to Comment on Public Interests of Teacher to Comment on Public Matters Mattersv. Interest of Employer to Promote Interest of Employer to Promote Efficiency of Public Services Performed Efficiency of Public Services Performed Through Its Employees Through Its Employees

FACEBOOK FIRINGS ■ Teacher’s Speech Protected – Dismissal Improper Improper ■ Private Citizen Commenting on Matter of Public Concern (Bond Issue) Public Concern (Bond Issue) ■ No Impact on Teacher’s Performance ■ No Impact on District’s Operations

FACEBOOK FIRINGS ■ Connick v. Myers (1982) ■ First Amendment Does Not Protect All Employee Speech Employee Speech ■ Employee Refuses to Accept Transfer and Circulates Questionnaire Circulates Questionnaire ■ “Mini-Insurrection” in Office

FACEBOOK FIRINGS ■ Employee Terminated ■ “Balancing Test” Applied ■ Matter of “Private Concern” Not “Public Interest” Interest” ■ Termination Upheld

FACEBOOK FIRINGS ■ Garcetti v. Ceballos (2006) ■ Employee Questioned Documents in Criminal Case Criminal Case ■ Employee Subjected to Retaliation ■ Employer’s Conduct Upheld

FACEBOOK FIRINGS ”When Public Employees Make Statements Pursuant to Their Official Duties, They Are Not Speaking as [Private] Citizens for First Amendment Purposes and the Constitution Does Not Protect Their Communication from Employer Discipline”

FACEBOOK FIRINGS What Do We Know?

FACEBOOK FIRINGS ■ Public or Private Social Media Information Relating to Any Aspect of School Life Can Relating to Any Aspect of School Life Can Result in Suspension or Dismissal Result in Suspension or Dismissal ■ Authority for School District to Discipline for Comments Made in Private Forum for Comments Made in Private Forum Having No Relation to School? Having No Relation to School?

FACEBOOK FIRINGS ■ ”Just Cause” Under South Dakota Law ■ Employees Have Responsibility to Maintain Standards of the School District Standards of the School District ■ Understand that “Private Posts” Will Not Likely Remain “Private” Likely Remain “Private”

“Facebook Firings: Social Media and Free Speech for School Employees” School Administrators of South Dakota April 5, 2016