School district's code of conduct rules questioned

School district's code of conduct rules questioned

A prominent First Amendment lawyer and journalist had some choice words concerning a number of the rules outlined in the Mountain View Whisman School District's trustee code of conduct.

"A lot of those policies are stupid," said Peter Scheer, executive director of the First Amendment Coalition.

Scheer, who has written for a number of prominent publications and often appears on news programs as an expert on free speech issues, was referring to a pair of rules which call upon board members to refrain from speaking ill of the board or district officials, even when they believe the board or district officials are in the wrong.

The first rule stipulates that trustees should "model behavior which will cause the board and the superintendent to be perceived as an effective and efficient leadership team." The second requires that board members ought to "support all decisions and policies of the board, whether those decisions and policies are made unanimously or by a majority of the board."

The wisdom and fairness of the rules were recently called into question at a district board meeting. "What if the board is ineffective and inefficient?" asked community member and lawyer Gary Wesley at the Oct. 3 board meeting.

At the meeting, Wesley spoke up in defense of trustee Steven Nelson, who was ultimately censured by the board for a laundry list of unprofessional behavior. While Wesley did not defend some of Nelson's more egregious actions -- including an incident in which the trustee apparently screamed profanities in the district office -- he did voice concern that the board was attempting to "shut up" a "watchdog" by censuring Nelson.

In a document which compiled many of Nelson's alleged transgressions, it was reported that he had "violated the obligation of board members to support decisions of the board majority." Additionally, in interviews with the Voice, and during the board's discussions in the lead up to Nelson's censure, several trustees said that he had acted inappropriately by expressing dissenting opinions to this newspaper and in other public forums.

In his comments to the district trustees on Oct. 3, Wesley said he believed it is the duty of all board members to speak up if they feel something is wrong. "They've added teeth that will bite any board member that speaks out," he told the Voice. "They've set a bad precedent."

Craig Goldman, superintendent of the district, said he doesn't see any problem with the rules. "The board believes it is important that it govern itself by a certain set of standards," Goldman said. "I appreciate that those standards include the expectation that district employees be treated with respect and that the decisions of the board are supported by other board members whether or not they agree with the decision."

Ellen Wheeler, president of the district board said she has the highest respect for Peter Scheer and Gary Wesley, but said she ultimately disagrees that the sections of the trustees code of conduct are stupid or set a bad precedent.

The code of conduct is a set of guidelines, Wheeler noted, and they do not infringe upon the First Amendment rights of any of the trustees, in her opinion.

Acknowledging that the entire discussion over the fairness and constitutionality of the code of conduct rules has emerged because of Nelson's censure, Wheeler emphasized that Nelson was not condemned for politely voicing his dissent.

"Steven Nelson wasn't censured for speaking out about things that he disagreed with on the whole," Wheeler said. "He was censured for his insulting, bullying behavior. That is different than First Amendment rights of being able to speak his mind. All of us are encouraged to speak our minds."

Indeed, there is a separate stipulation within the trustee code of conduct that encourages "the expression of divergent opinions by individual members of the board, the students, community and staff on all issues of concern."

It is true, Wheeler admitted, that Nelson was chastised for speaking out against decisions of the board. However, she said, that had more to do with the manner in which he voice his opinion, not that he publicly opposed the board.

"It's fine for him to have a healthy discussion with Craig Goldman or a healthy discussion at a board meeting where he shares his opinion," she said.

It would even be justifiable for him to explain to the local press why he opposed a certain board vote. But according to Wheeler, there were a number of times when Nelson disagreed with the board's decision where he repeatedly and sometimes offensively, expressed his dissatisfaction. Wheeler explained that there's a difference between explaining why you voted against something and repeatedly drilling that explanation into the ground. "That turns into not supporting the vote of the majority."

Scheer said that it is not uncommon for school boards to adopt policies that encourage or require board members to speak with one voice. Nor is it unconstitutional, he noted so long as a board does not impose a severe punishment for violating the code of conduct, such as stripping a trustee of his or her post.

But that doesn't mean he supports such policies. When asked what he thought about the Mountain View Whisman code of conduct, he replied: "That strikes me as an extreme policy -- a bad idea."

Such policies "do not advance the public interest," Scheer said.

Goldman said that he doesn't believe the board's bylaws make any attempt to stifle speech. According to him, encouraging "the expression of divergent opinions," while simultaneously asking that board members not speak out against board decisions is not contradictory.

"It's appropriate for board members to discuss issues in a robust manner during board meetings in a public forum. And to demonstrate our professional, respectful demeanor," he said. "I think the idea is that there is a time and place."

And according to Goldman, that time is in public meetings. Once a decision is made, however, a board member should be prepared to at least uphold the decision, even if he or she does not support it, he said.


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Posted by mom
a resident of Old Mountain View
on Oct 25, 2013 at 2:31 pm

"A lot of these policies are 'stupid'". Wow, what a great defense - wonder where he got his degree. Sounds like a bully on the playground.

Like this comment
Posted by Ron
a resident of Waverly Park
on Oct 25, 2013 at 2:39 pm

@mom: No, he is just being bluntly direct. It IS stupid to discourage people from speaking up any time it might make the leaders look bad. That just encourages waste and hiding from the truth. It is a VERY BAD IDEA (do you like that better?) to discourage dissent in government.

Like this comment
Posted by MVWSD parent
a resident of Cuesta Park
on Oct 25, 2013 at 2:43 pm

I guess that Mr. Scheer should have come to some of the meetings before he can make a personal decision. He may be "A prominent First Amendment lawyer and journalist", but he is not a Board member who needs to work with Steve Nelson.

Isn't Gary Wesley the one who continues to sue organizations for bond measures? Hmmmm. Well, thanks for your opinion, Mr. Wesley.

Mtn View Voice: Can't you now just let this go so the Board can get back to the business of helping our students? I am sure they would all (including Mr. Nelson) would appreciate that. Every single one of the Board members are there to help our kids.

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Posted by Christopher Chiang
a resident of North Whisman
on Oct 25, 2013 at 3:28 pm

I must refrain from discussing the merits of Mr. Scheer’s comments on the Code of Conduct that may or may not be revised in the future, but I feel compelled to share with the members of our community who have posted above, that the First Amendment Coalition is a very well respected organization that works commendably in defense of the free speech. Mr. Scheer, a graduate of Harvard Law School, is a legal expert, whose content I can’t here state a response, but his authority on the subject I do greatly respect.

Brown Act permits me to speak of past policies that have already passed. Regarding October 23, Resolution No. 1521. 10/13, Censure of Trustee Steven Nelson. I voted for this not to stop dissent. I voted for this because no board member should be able to threaten fellow employees without rebuke. It’s unfortunate that the censure has been framed as an attempt to stop anyone from criticizing the district. I hope Trustee Nelson will continue to criticize the district where he deems it appropriate, just as long as he does so in a professional manner. Trustees are leaders of this district with around 300 employees and 5,000 students. Belligerent speech that is tolerated when made by private citizen is not tolerable when made by leaders in workplace, let alone a place for teaching children.

Christopher Chiang
MVWSD School Board Trustee
The views expressed herein are my own and do not necessarily represent the views of the Mountain View Whisman School District or the school board.

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Posted by Doug Pearson
a resident of Blossom Valley
on Oct 25, 2013 at 3:39 pm

Steven Nelson is not the first local public official to try to get his way by yelling, bad language, and generally being obnoxious but I hope he is the last. That said, I agree with Gary Wesley and Peter Scheer that the school board should not shrink from contrary opinions; it should welcome a healthy debate.

In a set of bylaws, drawing the line between obnoxious and healthy is hard to do.

The US Congress has shown clearly that debate can become vicious and destructive. I don't like that but when two widely opposed policies are strongly held it's not easy to maintain a courteous debate.

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Posted by Observer
a resident of Old Mountain View
on Oct 25, 2013 at 4:39 pm

It sounds like they are Wheeler and Goldman are quoting from the Pirate Code, which are more like guidelines rather than strict codes. And like pirates these clowns will do anything to get there way in the end.

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Posted by Sally
a resident of North Whisman
on Oct 25, 2013 at 4:58 pm

"she ultimately disagrees that the sections of the trustees code of conduct are stupid or set a bad precedent"

Of course she does because the district policy requires her to support the new code of conduct that the board passed either unanimously or by majority.

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Posted by Kim Smith-Nilsson
a resident of Old Mountain View
on Oct 25, 2013 at 6:28 pm

It is always unfortunate when adults need to be reminded of what constitutes professional, constructive behavior. Mr. Nelson's highly aggressive behavior with district staff is simply unacceptable. This is in no way a free speech issue; it is his responsibility to voice his disagreements over policies when he has them, as it is the duty of all board members. To shout, bully, and threaten employees is not a function of free speech, however. It is an abuse of power. That he was unwilling or unable to change his behavior when asked to do so several times means that a special policy now needs to be put in place to remind him and others of acceptable behavior. I am sorry that it was necessary, and also appreciate that the board did not back down on this.

As far as supporting policies one voted against: except in the most dire of circumstances, it is generally assumed that a democracy requires the minority to voice opposition, seek to persuade, and if the majority votes another way, to seek a constructive way of supporting the whole body, in order to work for the common good.

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Posted by Mom
a resident of Old Mountain View
on Oct 25, 2013 at 7:44 pm

@Ron: if you read into my comment that I am supporting one side or the other, you are incorrect. Please reread my statement: I did not imply my position in the current debate at any point. My only observation was about the lawyer. Any implication was your own assumption.

I actually had this exact kind of run in with Steve myself before his election - he "assumed" that I was on one side of an issue that I had not even decided upon yet, and put me on the defensive. It did not make a good impression.

For the record, I encourage healthy discussion and debate in all matters. But above all, this is a school district - let's be good examples for our children.

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Posted by Cuesta Neighbor
a resident of Cuesta Park
on Oct 25, 2013 at 7:45 pm

Steve Nelson's behavior aside, I agree with the criticism of these rules. Do we expect our senators keep silent when they disagree with a law passed by others? Obviously, no. We expect them to continue to fight for what they believe is right. How would we ever get change if board member had to support all past decisions. It's an absurd idea. If the decisions of the board can't stand up to some public criticism by dissenting board members, they are probably weak decisions.

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Posted by Cuesta Neighbor
a resident of Cuesta Park
on Oct 25, 2013 at 7:49 pm

"According to [Goldman], encouraging "the expression of divergent opinions," while simultaneously asking that board members not speak out against board decisions is not contradictory." Sounds totally contradictory to me.

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Posted by So?
a resident of Blossom Valley
on Oct 26, 2013 at 6:58 am

OK, one guy disagrees. Thanks for your comment. Anything else besides the criticism? OK then...Next! all people with opinions blart them out here.

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Posted by Otto Maddox
a resident of Monta Loma
on Oct 26, 2013 at 4:11 pm

" seek a constructive way of supporting the whole body, in order to work for the common good."

What a load of nonsense.

We don't live in a democracy, thank goodness. We are living in a republic.

If a board member thinks something is bad they can continue to think that (and act accordingly) as long as their constituents keep voting for them.

That's how our system of government works. The majority doesn't get to push the minority around. That's mob rule.

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Posted by USA
a resident of Old Mountain View
on Oct 28, 2013 at 3:26 pm

"Scheer, who has written for a number of prominent publications ... "

HuffingtonPost is not a prominent publication.

Scheer is another blow-hard who unable to distinguish the message from how the message is delivered. (You are free to express you opinion, but you don't have to be an ass about it.)

Like this comment
Posted by USA
a resident of Old Mountain View
on Oct 28, 2013 at 3:29 pm

Steven, read Christopher's post above. It is a good example of how you have present an opinion without being a jerk about it.

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Posted by Garrett
a resident of another community
on Oct 29, 2013 at 1:05 pm

As someone who supports free speech and use to be a paid member of the ACLU but I find Rules of Conduct very important. Rules while speaking to the public or a board must be followed. The idea is to be professional and polite.

Sorry, but further commenting on this topic has been closed.

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