Suggestions for Home Rule Commission No. 3: Impeachment

What do you do when school board trustees go rogue?

Senate impeachment trial of president Andrew Johnson, circa long time ago.
Senate impeachment trial of president Andrew Johnson, circa long time ago.

I talked about board accountability at some length yesterday. (And by “at some length” I mean, in the immortal words of Bart’s girlfriend, “Do you ever think anything you DON’T say?”) The gist of it was suggesting that we should want our system of school governance to focus on improving student outcomes, and that’s not what is happening currently. That’s why creating a mechanism in the charter so that our trustees do have a good reason to keep focused on student achievement seems like solid plan to me.

But even that device comes with limitations. What if you have a board member who should be held accountable not just to voters, but to state law?

I’m not talking about someone with political views like Carla Ranger, who differed in her policy recommendations from everybody else. We have a diverse city with diverse interest groups, and it’s foolish to expect everybody to agree on what needs to be done to help our kids. We should encourage open and honest debate focused on solving problems for kids.

But what if you have a board member who isn’t interested in open and honest debate? What if that trustee breaks laws?

Surely, I can’t be serious. That doesn’t happen. If they break laws, we would prosecute them. Yeah, maybe. But I would suggest that trustees are already breaking laws. We just don’t realize they are laws.

For example, read this, from the Texas Education Code:

11.201(d) The duties of the superintendent include: (2) …

[except for campus staff, who report to the principal], assuming administrative authority and responsibility for the assignment, supervision, and evaluation of all personnel of the district other than the superintendent.

So what happens if a board member goes to an employee and tells that employee he or she must … I dunno, do something, anything. In legal terms, that would be “assigning duties” to that employee. What could that something be? Ohhhhhh, I dunnoooooo. Let me totally make up some stuff at random, and not at all suggest that people tell me (off the record) that these things happen all the time. It could be ordering staff to do something like the following:

  • Tell me when the status of that RFP changes.
  • Reassign or fire this employee who I think is doing a bad job (be it a principal, somebody in HR, or any of DISD’s 20,000 employees).
  • Run special reports for me about attendance at all my schools each month.
  • Reschedule that event you’re planning because of conflicts.

In strict legal terms, this is against the law. Now, I don’t know if this is the “you go to jail” kind of against the law or the “you’ll be sorry” kind of against the law. But it’s pretty clearly spelled out that this authority doesn’t rest with the school board. It is delegated to the superintendent. The law also says that individual school board members don’t have any real power, regardless. I’ve mentioned this before; here’s the exact wording:

11.051(a-1) Unless authorized by the board, a member of the board may not, individually, act on behalf of the board.

When trustees do this kind of thing, they are breaking the law.

Let’s forget about the law and talk about why this is bad for kids. If you’ve ever had the misfortune of working in a dysfunctional office where nobody knows who is in charge, then you know that organizations can’t accomplish anything without a clear chain of command. People get confused, their motivation drops, there aren’t any consequences for failure or rewards for success. It’s a mess. If you’ve never had the opportunity to work in a crapfactory like this, I think this video explains the situation.

As you may have gathered, I get the impression some trustees order staff around on the regular. Now, I’m sure often that’s because they want to get work done that they think helps the district, and they honestly believe they are doing a good thing. But being right doesn’t matter – it is beyond their power to make these demands, and the demands can often hurt kids. I’m sort of a sounding board for these problems within DISD, and I hear complaints about it from all quarters. I also hear that it’s really only one or two trustees who do it all the time, and when a DISD employee tells that trustee to go pound sand (proper response, btw), then that employee is in the line of fire. Retribution is then a real threat. I had one administrator tell me to go pull open records about requests from one trustee to a certain staffer, saying I’d be shocked at the demands said trustee was putting on that employee. That night, I got a frantic call begging me not to do it, because my source felt she/he would be caught up in said trustee’s retribution machine. These are the trustees who can sink an entire enterprise, even if they don’t have a voting block, even if the board as a whole is functioning just fine.

It’s really important to note: I’m not talking about trustees who have policy disagreements with others on the board. I may disagree with some trustees, they may drive me a little bananas, partly because I think everyone should share my worldview, but that’s democracy. Maybe they think Miles needs to be fired. Maybe they hate the concept of performance pay. There are places to express those disagreements. In any vote on the contract, don’t vote to extend. In any vote to implement or expand TEI, vote against it. If you convince a majority of trustees that you’re right, then you carry the day, and Miles is gone or performance pay goes bye-bye. But if you lose the vote and then spend all your time trying to destroy performance pay by harassing the individuals responsible for its implementation, that isn’t democracy. That’s board anarchy. That’s rogue behavior. You don’t like the law of the land, you don’t like the rule of the majority, and so you do everything in your power to tear the system apart to prevent that law from taking effect.

It leads to systemic collapse and a complete inability to fix a broken school district. Remember, ours is a system for children. It should be built on love and nurturing, and DISD generally attracts employees who feel that way. (Which is, my theory goes, one reason they’re so easy to bully.) When these employees are exposed to a rogue agent – one who is in charge of the system – what do you think the employees do? They go work for a different school system, that’s what.

Which brings me back to the home rule charter. Idea No. 3: impeachment.

If the board knows one of its own is doing this, consistently, with real harmful effects, what can the board do about it today? Nothing. School boards can adopt motions of censure, and do so on very rare occasions. But to what end? The theory is that this public shaming will be reflected in the ballot box. That theory makes some sense in an at-large system, but I’ve been unable to find any case of a censure working in a single member district where voters in different parts of town see things very differently. (If I’ve missed one, please send it my way.) A censure is simply a political statement.

If I’m sitting on the DISD board and I think about voting to censure a trustee, I think: “This is going to get me lots of hate mail, it’s going to really piss off a colleague who is already hard to work with, it will make the district look bad, it will make it harder to recruit volunteers and get support for public education, and, in the end, that colleague will probably still be here doing the same unethical garbage.” So, censure doesn’t work.

Instead, let’s give trustees the option to impeach one of their own.

This is different than a recall. In the case of a recall, a bunch of voters in that trustee’s district will fill out a petition, then a special election will be called to un-elect that trustee. So the voters get to enforce discipline more rapidly than would happen with the normal three-year election calendar. In the case of impeachment, the board itself gets to enforce discipline on one of its own members.

How would this work? The charter would allow the board to vote by some super majority (say, seven out of nine) to impeach a trustee, if a trustee was found to consistently violate board policy or state law. Just like impeachment at higher levels of government, this serves as the indictment of sorts, but doesn’t actually remove the trustee from office. Once the vote to impeach happens, the charter would then give the power to ratify the impeachment to somebody else. If ratified, the trustee would be removed from office effective immediately.

To whom do we give that power? Several possibilities: We could give it to the Dallas City Council — a suggestion that I know gives councilman Philip Kingston the fantods. If a majority of the council votes to ratify, then the board member is impeached. But Dallas ISD is in 16 different cities — 16! — so some people might not like that. DISD is entirely in Dallas County, so we could give the power to ratify to the Dallas County Commissioners (which kinda gives me the fantods, but I can’t say that it’s a bad idea on paper). The charter could designate the commissioner of the Texas Education Agency to hear the case. The commish already has the power to remove the entire board from office, but doesn’t have the power to remove individual board members, so this seems like a good fit. Lots of options here. No matter what entity the Home Rule Commission appoints to ratify impeachment, since those entities fall outside the power of the Home Rule Charter, it would STILL be up said entity whether it even wants to do so. See? Yet another check and balance to the system. Nobody would be removed from office easily.

In all likelihood, nobody would ever be removed from office. Impeachment exists in lots of public offices, but impeachment with ratification almost never occurs. It has happened only TWICE in Texas history, and only seven federal officials (all judges) have been removed from office in 230-plus years of the republic. Impeachment is hard, and politicians often shy away from impeaching folks just being jackwagons, because they know they’re all jackwagons.

The bet would be that just having the impeachment option available could change behavior. If I’m a trustee in DISD, I make the law. I decide what I want to do, what power I have, and I wield it however I want. If my colleagues on the board don’t like it, they can all go to hell, because my constituents elected me, and I will do what I want. But if impeachment existed, I would AT LEAST have to think twice before trying to bully staff. That gives us the possibility of curtailing, or dampening, rogue trustee behavior.

Back to this point: If this is really a legal violation, isn’t there something the courts can do right now? We don’t need home rule for this.

Well, sure. Trustees can be removed from office if convicted of a crime AND if subsequently removed from office by a judge because of that crime. But the local DA (hi, Craig!) would have to convene a grand jury to indict and convict one of our elected officials for breaking provisions of the Texas Education Code, which aren’t tied to the Texas Penal Code. These aren’t viewed as “go to jail” laws. Which is probably why I haven’t found a single case in Texas history where any school board member was indicted, much less convicted, on charges like this, even though you can throw a rock and hit a superintendent in North Texas who knows these laws are broken on just about a daily basis. (Again, if I’ve missed it, send my way.) Why wouldn’t we want to take our opportunity to be better than those districts at policing ourselves? Why wouldn’t we establish the enforcement mechanism that the Texas Education Code lacks? At the very least, why don’t we use the home rule process to debate doing so?

I got a text this morning from a city leader who thinks I overreact to this stuff. This person’s text: “Why does it matter that there is a small nutjob coalition on the board?” I hope I’ve answered that, or at least answered it in a way that lets you see there is reason for real concern: politically, legally, and functionally.

Final note: These most recent two HRC proposals for discussion (Nos. 2 and 3) only work if paired, I think. The one-two punch of collective board accountability and this individual board member accountability system I believe could be game-changing for DISD, and thus the poor kids in our district. This isn’t about changing the way a classroom works today. It’s about pushing the entire system in a better direction so that 20 years from now we’re not still talking about a widening achievement gap between DISD’s black and white students. That’s the thing about governance reform. It’s the rudder on a very big ship. Turn it immediately, wait, and hopefully you’ll miss the iceberg. It takes patience and commitment. Clearly, we are not, as a voting public, good at those things. But If we never address these major governance problems, we’ll regret it. Because we shouldn’t expect outcomes for our kids to look any different in 20 years without a fundamental reform of how we lead our school system.