Disclaimer: We caution that First Amendment issues are not only controversial, but also subject to new and different outcomes as courts continue to analyze each matter on a case by case basis. Before acting, a board should seek guidance from an experienced First Amendment counsel on the unique aspects and facts surrounding its situation.

Question:

How do boards protect the institution and their own First Amendment rights?

Answer:

For over 50 years, ACCT has identified good practices of boards to collaborate, act ethically and harmoniously, and set a positive tone for the college. The basic tenet that every board of trustees should govern as a singular unit and speak with a single voice is sometimes hard to follow for board members who want to speak out about a real or perceived injustice or difference of opinion with the rest of the board.

Backed by comprehensive board bylaws and a code of conduct, effective boards have several ways to avoid litigation and preserve civility among dissenting board members. One key, says ACCT General Counsel Ira Shepard, of counsel with the law firm of Saul Ewing, LLP, in Washington, D.C., is “promoting professional problem-solving techniques which facilitate efficient and effective administration and stress civility.”

Use Prudence and Common Sense

According to ACCT President and CEO J. Noah Brown, trustee free speech is “a difficult issue to grapple with” and trustees need to “be mindful that you can’t always divorce those statements and actions from the fact that you are a recognized individual in a leadership role.” In an Inside Higher Ed article, “Do trustees have full freedom of speech?” Brown encourages board members to use common sense and to recognize the extent of their leadership responsibility to the college community, avoiding public controversy and conflicts that could reflect badly on the college and on the board.

Whether their comments are issued through social media, personal statements, or letters, public college board members are advised to use prudence in their actions and communications. They have the fiduciary “duty of care” for their institutions and should avoid bad publicity for the college, the board, and for themselves. This is particularly relevant to elected trustees who represent the interests of the community and the voters who elected them to be on the board.

Function Only as a Whole Body

The power of the board is as a body of the whole, not as individual actors. Board members should avoid personal selfinterests in the boardroom and speak on behalf of the college and community, not for any political or personal affiliation. According to Cindra Smith, author of Trusteeship in Community Colleges: A Guide for Effective Governance (2008), “Every trustee brings their own perspectives to the board room and applies their own experiences and insights to the important discussions and decisions that are made. Yet the commitment to serve on a board of trustees is tied to the inextricable acknowledgement that ‘no individual trustee has power or authority to act on his or her own.’”

Look to Board Policies

Open records requests, public letters to the editor of local papers, and speaking out publicly seem to be the most prevalent strategies that discontented board members choose. Other more harmonious and more appropriate means of getting the information they seek to resolve concerns about mismanagement lie in board policies. In ACCT’s Guide to Ethical Governance, governing boards function best when the ethical standards for trustee behavior are clear. “ACCT recommends that all boards adopt a set of standards, often called a ‘code of ethics’ or ‘standards for good practice.’ Some regional community college accrediting commissions already require that boards have a code of ethics or similar statement in place,” the guide states.

Boards’ codes of conduct and board policy manuals can provide avenues for individual board members to speak their minds to the board rather than speaking to the press. These include:

• Speak first with the chair about the troubling issue.
• Seek counsel: The chair sets up a meeting with the president, chair, trustee, and board counsel to get more information.
• In executive session, the entire board meets with board counsel to discuss the alleged facts and seek legal advice.
• If a board member asks for a review of ethics issues at a public meeting, the board chair shall direct that the discussion take place in executive session with the participation of counsel in order to seek legal guidance on the issue.

Individual members of a board should not be conducting investigations into college business. A formal request at a public board meeting can be made, but such requests should have been made previously in executive session. Even though trustees may have concerns about the college’s management, they need to be prudent in their requests to avoid their own mismanagement or micromanagement. And likewise, college administrations need to be willing to share with the board the requested information before formal open requests are initiated. A “no surprises” rule should be practiced by both board members and presidents.

Rogue Trustee Behavior

To maintain board cohesion, individual trustees who have differing opinions should consider what’s best for board harmony and for the college. “Going rogue” may mean bad headlines and possible censure. According to “Trusteeship 101: Board Basics” from ACCT’s seminal handbook, Trusteeship in Community Colleges,

The term “rogue trustee” has been used in the news media to describe board members whose personal or competing interests interfere with the board’s collective interests. Every board member should be aware of the potential of wandering into this pitfall, and they should constantly ask themselves whether what they are doing is in the interest of the college or serving a personal agenda. If it is serving a personal agenda, then the trustee must realize that what is in his or her best personal interest is to set the agenda item aside — as trustees who are disruptive for reasons that don’t serve the mission, vision, or goals of the college tend to undermine their own aims in the end by alienating themselves from the board.

Rigorous Debate

To avoid individual members going rogue, boards should allow for respectful, rigorous debate. Practicing civility and transparency in their debates in the boardroom, board members can balance their rights to free speech along with their responsibilities to their colleges’ values and those of their communities. Board discussion, either at a public meeting or in executive session, should allow for thoughtful questions and discussion by its members. After rigorous debate, individual opinions must be set aside. Once a decision has been made, ethically the dissenting board member is obligated to support the decision.

For some trustees, this is difficult. Smith writes, “Disagreements are inevitable among any group of people — but disharmony is not.” While some personality and perspective-based challenges are found to arise from time to time, “these should be viewed as opportunities to consider diverse points of view that can be anchored and tempered by always keeping in mind the college mission, vision, and goals.”

When it comes to board members, free speech issues concern the trustee who publicly disagrees or breaks confidentiality. When a public employee has restrictions to speech in their official duties, “the employees are not speaking as citizens for First Amendment purposes, and the U.S. Constitution does not insulate their communications from employer discipline.” (Garcetti v. Ceballos, 2006). The same holds true for unprotected speech, such as issues of harassment, threats, incitement, obscenity, or defamation.

ACCT’s first standard of good practice, “act as a unit,” comes to mind immediately. For both elected and appointed board members, the traditional board code of behavior of publicly going along with the board’s decisions does, in essence, prohibit individual trustees’ “free” speech. ACCT’s principles emphasize that boards should get along as colleagues, allow the president or the board chair to be the primary spokespersons on any key issue, and basically keep one’s own differing opinion confidential and out of the headlines. Those actions protect the institution.

Smith writes, “Even with the best of intentions, trustees may clash over differences of opinions about what they believe is best for the college. But when discussions and decisions are guided by a thorough understanding of the community and the higher education sector, and informed by data, it is always possible to function as an effective team.”

Sometimes this stance is simply not tenable to an elected board member who both supports free speech and feels his allegiance is to the people who elected him, not to the board. Sometimes board members feel that the right thing to do is to speak out against what they thought was both unethical and unlawful, which leaves them open to censure by the board.

According to Terry J. Malone, a free-speech advocate who served 20 years as a trustee for Dodge City Community College in Arizona, “I think there are conflicts between policy and freedom of speech issues which are more prevalent in colleges where the trustees are elected and must answer directly to the people who provided the vast majority of the funding for the college they own.” As an elected board member who was censured for going against the position of the board regarding resource allocation, Malone argues against speech restrictions.

In its Guide to Ethical Governance, ACCT has developed a model code, parts of which are cited below. Boards of trustees are encouraged to use this model as a starting point for discussion and exploration by trustees of expectations for their own behavior. For the discussion at hand, relevant parts are cited below:

Collaboration

• Work with my fellow board members in a spirit of harmony and cooperation in spite of differences of opinion that arise during vigorous debates of points of issue;
• Base my personal decision upon all available facts in each situation; vote my honest conviction in every case, unswayed by partisan bias of any kind; and abide by and uphold the final majority decision of the board.

Authority

• Remember at all times that as an individual I have no legal authority outside the meetings of the board, and to conduct my relationships with the community college staff, the local citizenry, and all media of the community on the basis of this fact.

Ways to Request Information

Members of boards should not have to resort to filing official open information requests. These should be honored in study sessions, or in executive sessions if the request relates to college or board personnel or other confidential information. Confidentiality is expected of board members regarding certain classified information and should be part of each board’s code of conduct. Breaking confidentiality is egregious trustee behavior.

To avert official filings, both college presidents and board chairs should do everything in their power to be transparent and forthcoming. Board members should be able to ask questions — not to micromanage, but to assure that the board and the college is ethical and has the community’s interests (and not self-interest) at heart. All trustees have a requirement to work in cooperation and harmony with the entire board, and the college leaders and board chairs have a responsibility to practice transparency.

According to John Lombardi, former university president and author of How Universities Work, “When trustees have concerns about mismanagement, they should first speak to the chair of the board, and then the two together should speak with the president or chancellor of the college.” Effective boards should work with the president to resolve questions. If the executive can’t resolve the issue, it may be that the board needs to take up the issue in executive session. “When boards do not resolve these issues in executive session, but individual board members seek out alternative forums in public to attack the institutional management or each other, it may well indicate mismanagement of the board’s responsibilities.” When board members cannot get answers to legitimate questions, they do not need to go rogue or go it alone. They should insist on the board using board agreed-upon protocols of full disclosure.

Free Speech Board Policies

Boards have many ways to prepare for and to accommodate strong differences of opinion among board members. First and foremost is policy. Board bylaws comprise board policy about individual and group behavior. The free speech of boards can be limited by board policies and the need for public harmony.

Using the “no surprises” rule, trustees should be transparent with the board, the president, and other board members. Whether elected or appointed, board members should know what their responsibilities are and follow through according to their bylaws and codes of conduct, and many trustees take an oath saying they agree to follow the prescribed bylaws. Effective board governance requires that they do so.

Guidelines

Here are some strategies to think about implementing if your board has not already done so.

• Board Bylaws and Codes of Conduct are agreements about board processes, procedures, and principles and should be updated each year. They need to address controversial conflicts of interest and free speech such as expressive conduct or expressive association.
• Legal Counsel. Before any board bylaws or code of conduct is adopted, it is critically important that boards and colleges seek expert legal advice from a First Amendment practitioner or expert, including their general counsel.
• Communications and Transparency. If board policies do not cover communication and speech protocols, these should be added. Accreditation agencies and site visitors look at such controversies, and transparency is important to protect the integrity of the college and of the board.
• Onboarding. Each time a new president or board member comes on board, board members need to review and update board bylaws. This review should be an essential part of orientation and onboarding processes.
• Neutrality. Some governing boards prefer to remain neutral on issues of public controversy, leaving debate to individuals and encouraging a wide range of opinion and dialogue. Such tolerance displays the ideal that the board is a forum for rigorous examination of issues. During the open public comment period at board meetings, it is important for board members to listen and not immediately react to guest speakers. Responses to topics brought up in the public forum should be discussed by board members if they have not already done so. Again, the no surprises rule allows all board members to have their say before anything official comes from the board. Boards can go into a 10-15 minute executive session to discuss an important, urgent, or controversial topic brought up at an open session and then return to continue the public meeting.
• Free speech ethos. Boards can set an example for their institutions by respectfully demonstrating free speech and debate during their meetings. This is particularly important for board chairs to establish precedent — allowing board members to ask their questions and provide different points of view over an issue. Such transparency can indicate the thoroughness and dedication of board members about making good decisions about an issue. Civil and open dialogue also can advance learning, improve the understanding of different perspectives, and model the ability to present well thought-out arguments.