Preparing for Annual Meetings and Elector Attempts to Change Health and Safety Measures within Schools

Wisconsin Statute Section 120.08(1) dictates that common and union high school districts hold annual meetings of their electors.  Many annual meetings are taking place this month when there is significant controversy over school districts’ COVID-19 protocols. Electors within those school districts serve an important role in their annual meetings by having the authority to exercise powers set forth in Wis. Stat. Ch. 120.  Given the COVID-19 pandemic, school district officials have expressed concerns about the power of the annual meeting to direct or overrule school board decisions, including those related to COVID-19 health and safety measures (e.g., an elector makes a motion to reverse or impose a mask mandate in conflict with the school district’s current COVID-19 protocols). 

This Legal Update serves as a reminder that the authority of the annual meeting is limited to those powers that are “specifically conferred either expressly or by necessary implication,” none of which include the power to direct or overrule school boards with respect to health and safety measures.  See State ex rel. Waldeck v. Goedken, 84 Wis.2d 408, 418, 267 N.W.2d 363 (1978).

The powers of the annual meeting are limited to the following:

• Electing a chairperson, and electing a clerk, if the district clerk is absent;
• Adjourning;
• Voting for board member salaries or payments for individual meetings;
• Reimbursing travel expenses of board members or loss of earnings if their duties conflict with regular employment;
• Designating sites for school buildings and providing for the erection or lease of buildings;
• Authorizing acquisition of buildings;
• Voting a tax for purchasing or leasing buildings, including equipping and maintaining buildings;
• Voting a tax for purchasing, operating, and maintaining vehicles and obtaining liability insurance for such vehicles;
• Voting a tax for operating schools;
• Voting a tax to discharge debts/liabilities;
• Voting a tax to pay current bonded indebtedness for capital expenditures;
• Voting a tax to create a fund to finance current and future capital expenditures related to buildings/sites;
• Voting a tax related to recreation authority under Wis. Stat. § 66.0123;
• Providing for the prosecution or defense of legal actions or proceedings in which the school district is an interested party;
• Furnishing textbooks;
• Furnishing school lunches;
• For union high schools, voting to consolidate or discontinue a school where the district operates more than one high school;
• Requiring or rescinding the requirement of nomination papers for school board elections when candidates are not required to submit such papers by law;
• Authorizing school district funds be used for the school board’s purchase of accident insurance for students;
• Approving the school board’s authority to lease school sites, buildings, and equipment not needed for school purposes to persons at reasonable rental rates; and
• Authorizing and directing an audit of school district accounts.

See Wis. Stat. §§ 120.10(1)-(19), 120.06(6)(a), 120.13(2), (25); 120.14(3).  In addition to the list above, by petition, the electors may request a change in the number of school board members, establish a plan of apportionment of school board members, or assign a number to each seat on the school board; if the petition is filed within thirty (30) days of the annual meeting, the annual meeting may also consider those matters as well.  Wis. Stat. § 120.02(1), (2), (4).  Aside from the absence of any provision authorizing the annual meeting to direct or overrule school board decisions on health and safety measures, the sections applicable to annual meetings contain no catchall provision that might broaden the authority of the electors.

In contrast to the limited authority of the electors, school boards retain greater authority to act on behalf of such school districts.  Wisconsin Statute Sections 120.12 and 120.13 set forth the powers and duties of the school boards of common and union school districts; some of the powers and duties within those statutes are specific, while others are more general.  For example, while Wis. Stat. § 120.12 requires that school boards determine school day scheduling and academic standards, it also requires that school boards exercise management and general supervision over the school districts.  See Wis. Stat. § 120.12(1), (2), (13), (15).  Although a school board’s general management authority under Wis. Stat. § 120.12(1) is subject to the power vested in the annual meeting, the same is not true for Wis. Stat. § 120.13.  Wisconsin Statute Section 120.13 provides as follows:

The school board of a common or union high school district may do all things reasonable to promote the cause of education, including establishing, providing and improving school district programs, functions and activities for the benefit of pupils.

In accordance with this general grant of authority, school boards may “[m]ake rules for the organization, gradation and government of the schools of the district, including rules pertaining to conduct and dress of pupils,” as well as authorizing a district administrator or other designee to suspend a student for “[c]onduct… that endangers the… health or safety of others.”  See Wis. Stat. § 120.13(intro), (1)(a)-(b).  Wisconsin law also states that these school board powers are to be “broadly construed to authorize any school board action that is within the comprehensive meaning of the terms of the duties and powers.”  See Wis. Stat. § 118.001.  This rule of broad construction is limited only to the extent an action is “prohibited by the laws of the federal government or of this state.”

Although the Chapter 120 creates a division of authority between the annual meeting and the school boards, the aforementioned language and case law make clear that the division was never meant to subject a school board’s authority to the authority of the annual meeting in every instance.  See Waldeck, 84 Wis.2d at 418.  As such, if electors attempt to take action related to matters outside the scope of the power and duties of the annual meeting, the chairperson for the annual meeting may either direct the electors to refrain from discussing such matters or remind the electors that any such discussions and actions are advisory only and do not require the school board to act.  Alternatively, if the chairperson for the annual meeting is part of the group seeking to take action related to matters outside the scope of the power and duties of the annual meeting, the discussions and actions taken by the electors regarding matters outside of the scope of the power and duties of the annual meeting are advisory only.  The school boards have the exclusive statutory authority to direct the health and safety measures within school districts.