With the spring election of school board members completed, school boards must now focus on the school board organizational meeting for purposes of electing officers. This Legal Update provides a review of the laws governing that organizational meeting, and addresses some of the concerns about accomplishing the organizational meeting tasks when one or more school board members is attending virtually.
For school boards with more than 3 members, the organizational meeting must take place on or within 30 days after the 4th Monday in April. Therefore, this year, school boards must hold their organizational meetings and elect officers between April 27, 2020 and May 27, 2020.
For school boards of common and union high school districts that are composed of more than 3 members, Wis. Stat. § 120.05(1)(c) requires such school boards to elect officers annually at an organizational meeting. The following requirements apply to organizational meetings:
In the case of a school board with more than 3 members, the school board shall annually elect a school district president, vice president, treasurer and clerk from among its members at a school board meeting held on or within 30 days after the 4th Monday in April.
A different rule applies to 3-member school boards. Wis. Stat. § 120.05(1)(b) provides as follows:
In the case of a 3-member school board, the school district president, treasurer and clerk shall constitute the school board. At the first election of a 3-member school board, the clerk shall be elected for a one-year term, the treasurer for a 2-year term and the president for a 3-year term.
Unified school districts are subject to the same rules as common and union high school districts with regard to organizational meetings except that school boards for unified school districts may not have 3 members and they must elect a school board secretary who “need not be a member of the school board.” Wis. Stat. § 120.43(1).
The election of officers at school board organizational meetings may be decided by typical board voting procedures, such as a voice vote or a roll call vote. However, Wis. Stat. § 19.88(1) also permits school boards to elect officers of a school board by secret ballot. School boards should consult existing board policies to determine whether a specific method of voting for the election of officers is required.
In light of the COVID-19 pandemic, the secret ballot method of voting presents potential challenges for school boards conducting the election of officers when one or more board members is attending the meeting virtually. School boards are encouraged to review existing board policy governing the organizational meeting and secret ballots to determine the school boards’ options with regard to voting.
For example, if existing board policy requires that the school board utilize a secret ballot to elect officers, the school board may determine that an in-person meeting, with appropriate social distancing, is most appropriate for the organizational meeting. Alternatively, the school board could choose to use videoconferencing software that permits anonymous polling within the application, so as to allow for a secret ballot during an organizational meeting where most, if not all, of the school board members are attending virtually. However, before using this option, school boards are advised to consult with their technology personnel to determine if this option is feasible and has appropriate security measures. As another alternative, the school board may determine that the election of officers will not be conducted by secret ballot this year and take appropriate steps to suspend or amend the policy that requires the secret ballot voting.
If existing board policy merely permits, but does not require, secret ballot voting, a simple majority vote of the school board may be used to determine the voting method for the election of officers at the organizational meeting. Unlike a single board member’s ability to force a roll call vote in place of a voice vote, a single board member’s support for secret ballot voting does not control the voting method for the entire board when the use of secret ballot is merely permissive and not mandatory.
In addition to the election of officers, school boards may use the organizational meeting to administer the official oaths of office for newly elected board members, including incumbents who were re-elected. Wis. Stats. §§ 120.06(4),(10) and 120.42(2) provide that newly elected school board members must take and file their official written oath of office by the 4th Monday in April. School boards will often schedule both their organizational meeting and the administration of official oaths for the same date, even though the oath need not be taken at a school board meeting.
Many school boards have raised questions regarding the permissibility of remote administration of oaths, particularly if the school board’s organizational meeting will be held virtually. Wis. Stat. § 19.01(1) currently provides that the oath must be “subscribed to and sworn to” before an official capable of administering the oath. This has always meant in person administration of the oath, which a board member must complete by using a specific written form. Often, the school district clerk administers the oath. However, many other individuals are eligible to administer the oath: namely, notary publics. At this time, neither the Wisconsin Elections Commission, nor any other Wisconsin agency, has released any guidance on remote administration of oaths for newly elected school board members. Thus, to the greatest extent possible, a newly elected board member should take his or her oath in person.
If it is not possible for a newly elected board member to take his or her oath in person, it may be possible to do so remotely based on recent guidance issued by the Wisconsin Department of Financial Institutions (DFI) regarding remote notarization. If a newly elected school board member relies on this guidance, they are advised to strictly follow DFI’s guidelines. For instance, DFI has advised that www.notarize.com and www.notarycam.com are companies authorized to provide remote notarization in Wisconsin. Given the uncertainty regarding remote administration of oaths for school board members, however, the most prudent approach for a newly elected board member is to take the oath in person, while maintaining appropriate social distancing.
Finally, in addition to the election of officers and administration of oaths for newly elected school board members, school boards often utilize their organizational meetings to address additional topics, such as the schedule for regular monthly board meetings, the appointment of members to board committees, the establishment of the official newspaper for board publications, and the designation of the official depository for school district funds. If a school board intends to address any of these additional topics, the topic must be included in the meeting notice and properly posted in accordance with the Open Meetings Law.
 See Wis. Stat. § 887.01 for a complete list of individuals capable of administering the oath.
 Remote Notarization Now Available, Wisconsin Department of Financial Institutions (available at http://www.wdfi.org/Apostilles_Notary_Public_and_Trademarks/pdf/Remote%20notarization%20-%20webpage%20announcement.pdf).