Monday, June 22, 2015
Judge's ruling: Nodler, Beard, Gatz will remain on Joplin R-8 Board
Judge Joseph Hensley ruled this morning that Jim Kimbrough was elected at the May 26 meeting and could have been sworn in at that point, but subsequent board actions stopped that from happening and it is too late to go back now.
The Court believes the Relators’ argument is correct in all respects relative to Jim Kimbrough having received the requisite number of votes to fill a vacancy on the Board as it existed at that time, and Mr. Kimbrough could have been sworn in at the May 26th meeting.
But that is not what happened.
The judge indicated that though the arguments made by attorney Jonathan Pierce, representing Joplin residents Josh Bard, Jon Buck, and Jamie Johnson, were correct, the actions taken by the board itself, including tabling the discussion and not coming to a resolution before the resignation of Mike Landis opened the door for the appointments to be made by the Jasper County Commission.
And, according to the judge, it is too late to close that door now.
The decision likely ends all efforts to seat Jim Kimbrough on the board and void the County Commission's decision.
The complete decision is printed below:
ON THIS DATE the Relators’ Petition for Writ of Mandamus came before the Court for consideration. The Court reviewed the Relators’ Petition and their Suggestions in Support from June 12th and June 21st, 2015.
Though laborious, the chronology of the events leading to the Relators’ Petition is important. On April 7th, 2015, Jeff Koch, Jennifer Martucci, and Lane Roberts were elected to the Joplin R-8 School Board (hereinafter “Board”). Rounding out the seven member Board on that date were Mike Landis, Lynda Banwart, Randy Steele, and Debbie Fort. Prior to the April election, however, Mr. Roberts accepted a position as the Director of the Missouri Department of Public Safety, and could not remove his name from the ballot due to the timing of the offer and his acceptance. Thus, a man who announced he could not serve if elected was elected anyway, creating an immediate vacancy on the Board.
Both Missouri law and Board Policy address vacancies on the Board. Any vacancy in the board is filled by the remaining members. Sec. 162.261.1 R.S.Mo. Board Policy BBE-1 provides for a procedure of notification, application of interested residents, a review and interview process, and selection.
After some delays and eventual interviews of several candidates during an open meeting on May 12th, votes were taken with no applicant receiving a sufficient number of votes2 to be appointed, so the matter was tabled until the next meeting on May 26th.
One May 26th the Board meeting started with six members who initially went into closed session, but before the Board began the open session and eventual discussion of the appointment of the seventh board member, Randy Steele resigned. At that point on May 26th, the Board was down to five members.
The Joplin Schools Policy BBE-1 provides that in the event of one or two vacancies on the Board, “the remaining members shall appoint a person to serve until the next school board election . . . .” The Policy further provides that the appointments will be made in open session “through a formal motion and seconded, and an affirmative vote by a majority of the Board” also held in open session. The Policy prohibits the resigning board member from participating in choosing their successor. However, in the event of three or more vacancies, the Policy provides that the County Commission shall fill the vacancies by appointment.
When the issue came up for discussion at the May 26th meeting, it was clear from
President Koch’s early comment that he, and presumably everyone else in attendance, believed four (4) votes were necessary to appoint a seventh member (1:44).4 Mr. Landis motioned for
1 All references to statutes are to the Revised Statutes of Missouri, Cumulative Supplement 2011, unless otherwise indicated. Joplin School Board Policy is hereinafter referenced as the “Board Policy” or simply "Policy." Robert's Rules of Order Newly Revised, 11th edition is referenced herein as "Robert's Rules of Order."
At the time, there were six acting Board members, so a majority of four (4) votes were necessary.
When the issue came up for discussion at the May 26th meeting, it was clear from
President Koch’s early comment that he, and presumably everyone else in attendance, believed four (4) votes were necessary to appoint a seventh member.
Mr. Landis motioned for consideration of a first candidate, seconded by Ms. Banwart. (1:45). That applicant failed by a 2-3 vote. Dr. Fort motioned for Mr. Kimbrough’s appointment, seconded by Ms. Martucci. After a 3-2 vote, Koch announced, “That motion does not pass.” (1:45). Ms. Banwart then motioned a final candidate, seconded by Mr. Landis, which failed by a 2-3 vote.
Several minutes of discussion followed wherein the Board discussed and debated the various attributes of the three candidates and pleaded with each other to compromise, but there was no appointment on May 26th.
The Board’s Policy is somewhat ambiguous regarding the phrase “an affirmative vote by a majority of the Board” necessary to appoint a new member to a vacancy. With only five members present on May 26th, a majority was three. Various arguments could be made that the intent of the Policy was to provide for a minimum of four votes to appoint a new member. While the Policy easily and unambiguously could have expressly provided for a vote of four members, it does not. Without further elaboration, which is unnecessary given the result reached here, the Court believes the Relators’ argument is correct in all respects relative to Jim Kimbrough having received the requisite number of votes to fill a vacancy on the Board as it existed at that time, and Mr. Kimbrough could have been sworn in at the May 26th meeting.
But that is not what happened.
It must be noted that as President, Board Policy BCB required Mr. Koch to “exercise such powers as properly pertain to the office according to the Robert’s Rules of Order, Revised.”
Further, Koch had the “right, as shall other members of the Board, to offer resolutions, to discuss questions and to vote thereon.” His enumerated responsibilities also include (1) “the orderly conduct of such Board meetings,” (3) “Bring[ing] before the Board matters which, in his judgment, may require the attention of the Board,” and (7) “Call[ing] special meetings of the Board as found necessary.”
On May 26th, after the vote on the third applicant failed, Koch stated, “Well then, what I will do is I will . . . I would accept a motion to table this until the next meeting.” Ms. Banwart disagreed, stating, “I think our job is to elect somebody tonight.” After some discussion, Mr. Koch reiterated, “But the fact remains we need to get to four,” to which no one disagreed and one board member exclaimed, “Right.” Mr. Koch concluded, “And that complicates things.”
Realizing there was an impasse, in an attempt to move things along, Koch stated “Alright, so we can say there was effort given, and we will come up with some new ideas for next time, but with that, I would accept a motion to table item 4g for the next meeting, sorry, 4 - 3g, well item 3 and 4.” When no one made this motion, Koch then emphasized, “I will move that,” and the motion was seconded. (2:10). The resulting vote was as follows:
Fort – No
Martucci – Yes
Banwart – Yes
Landis – Yes
Koch – Yes
Consequently, President Koch’s Motion to Table the issue of the appointment of a new member passed by a 4-1 (80%) vote, and he stated, “So, it is tabled.” (2:11). Fort complained, “I thought we really needed to settle it,” to which Landis replied, “I thought the same thing.”
Koch also remarked that it is unfortunate the Board cannot vote for both Jim Kimbrough and another candidate, and emphasized that they were only voting for one member. But in fact, as of that evening, the Board needed to vote for two. It is possible that voting for two members at that time would have brought up a Sunshine Law problem, as voting for two members could not have been on the agenda.
A few minutes later, the board unanimously voted to adjourn into a closed session to discuss legal, real estate and personnel matters.
Two days later, on May 28th, the situation changed dramatically when Mr. Landis resigned from the Board, leaving three vacancies and removing the appointment process from the Board to the County Commission.
Pursuant to Article VII, § 11 of the Missouri Constitution, and § 162.301.1, a Board member must be sworn in before they are officially a school board member. On June 8th, Koch sent an e-mail to Board Secretary Pat Waldo, stating:
You are instructed to administer the Oath of Office to Mr. Kimbrough and notarize his signature on the proper form. Please send me a copy once it is complete.
Joplin Schools Board of Education
A press release was also attached to the e-mail, which states:
After careful review with the Missouri State Statutes, local Joplin School Board policies and with consultation with legal advisors it was determined that when Mr. Kimbrough received a 3-2 majority vote on May 12, [sic] 2015, that was sufficient for accepting the motion to appoint him. We had conflicting information at the time and due to Mr. Steele’s abrupt departure we did not have time to research the matter in advance. We planned to discuss this at our June 23rd meeting but with the Jasper County Commissioners placing Appointments to the Joplin School Board’ on their agenda for tomorrow, we felt it was important to resolve this matter with today’s action.
Relators’ Exhibit 1 (Emphasis added). The final “we” pronoun is loaded with implication and poses an interesting dilemma for the Relators. If Koch’s “we” meant Martucci and Fort (or even if “we” included Banwart), then ironically Koch violated Missouri’s Sunshine Law in his discussions regarding swearing in Kimbrough, and any action taken as a result of those discussions would be void, a fact glossed over by the Relators and which would end this analysis in favor of the Respondent Board. If “we” meant simply Koch and his advisor(s), the analysis on the following pages apply.
It is unknown if Mr. Kimbrough was present at central office on June 8th and ready to take the oath of office as required, but for whatever reason, Ms. Waldo did not swear in Mr. Kimbrough on the 8th or anytime thereafter.
On June 11th, the Jasper County Commissioners nominated, appointed, and swore in three new members to the Board. These Petitions for Mandamus followed.
As previously stated, the Court agrees with the Relators as to all of their points relative to the May 26th 3-2 vote which was sufficient to appoint Kimbrough to the Board. However, no one at the meeting understood that at the time. Thinking just the opposite, Kimbrough was not sworn in. Perhaps more important, however, was what happened within minutes of that vote. Following Robert’s Rules of Order, President Koch requested a motion to table the matter, and when no one readily spoke up, he made the motion himself to table the issue of the appointment, which passed by a 4-1 vote.
Thus, the crucial question is what effect did the May 26th tabling of the appointment discussion have vis-à-vis President Koch’s subsequent, and apparent unilateral attempt to have Ms. Waldo swear in Kimbrough on June 8th?
Under Roberts Rules of Order, postponing a matter from one meeting to the next can be tricky. Methods include a Motion to Lay on the Table, a Motion to Postpone to a Certain Time, and a Motion to Postpone Indefinitely. The Motion to Lay on the Table is actually rather rare and is used to lay a pending issue temporarily aside to address another immediate concern or when something must be addressed before consideration of the pending motion can resume. Robert’s Rules of Order Newly Revised, 10th edition, pages 207-209, on Misuses of the motion.
A Motion to Postpone Indefinitely or to Postpone to a Certain Time is likely what Koch intended, though under any of the three motions, the effect was the same: action on the matter stopped, and would need to be voted “off the Table” through a “Motion to Take from the Table” or alternatively, if postponed, a “Motion to Resume Consideration” before further action could be taken.
There is no mention of a Board meeting between May 26th and June 8th.6 Neither Kimbrough, Koch, Martucci or Fort brought the matter back up prior to June 8th, at least not in an open meeting, and the Relators’ petitions were not filed until after the Commissioners’ appointments on June 11th. Put simply, to move forward on the appointment issue under Robert’s Rules of Order, as President Koch was bound to do by Board Policy, he would need to have followed his enumerated Policy directives by (3) “Bring[ing] before the Board matters which, in his . . . judgment, may require the attention of the Board,” and (7) “Call[ing] special meetings of the Board as found necessary.” He did neither, and therefore his e-mail to Pat Waldo was a nullity. The Court cannot go back in time and fix this error by forcing Waldo, through a Writ of Mandamus, to do something Koch improperly asked her to do.
Due to Landis’ resignation, query as to whether the four member board could have met at that time to bring the Tabled issue back into discussion for a vote? After Landis’ resignation, the Board may have been "dead in the water."
To the extent this Court’s opinion appears critical of President Koch or the Joplin School Board members (past and present), that is not the Court’s intent. The Court is all too aware of the struggles of a school board member and the strain it puts on their time and families. The struggles the Board has faced since May of 2011 are simply unprecedented.
The Joplin R-8 School Board was forced to rebuild both its literal bricks and mortar, as well as its leadership personnel, from the ground up. Subtleties in parliamentary procedure and Sunshine Laws are known only to a handful of experts, not citizen Board members selflessly volunteering their time and business or educational expertise in the pursuit of educating Joplin’s children. Their errors in procedure had to be pointed out and examined in this opinion to reach the ultimate conclusion, one that, “the public wants to see . . . [so that] they understand.
On June 11th, when the County Commission acted, there were still three vacancies, and they properly appointed three Board members to serve until April of 2016.
In conclusion, this Court “cannot undo what has already been done,” and is “powerless to correct any wrongs or misfortunes [Relators] may have suffered resulting from the [3-2 Kimbrough vote]. It is too late to lock the barn door after the horse has been stolen.” Quoting Raymore-Peculiar Reorg. School Dist. R-II of Cass County v. Stewart, 424 S.W.2d 752 (Mo.App. 1968).
It is sometimes difficult to see the forest of children for the trees of school politics. Much has been said from all sides that they simply want to “move forward.” But actions speak louder than words.
Though the tragic events of May 22, 2011 brought out the very best in the City of Joplin, recent events have cast a long shadow over those days of progress and cooperation. The Court hopes the Board and Joplin’s parents, taxpayers, and voters will “move forward” now and in the April election with a focus on its younger citizens who care little about quorums andSunshine laws and more about sunshine and field trips.
WHEREFORE, Relators’ Petition for Writ of Mandamus is denied.