The Yavapai Community College Governing Board voted 4-1 on Nov. 19 to adopt a resolution drafted by former YCC President David Borofsky and requested by Deb McCasland — the District 2 board member, board chairwoman and a former college employee — in which the board attempted to delegate the authority to operate the college to YCC President Lisa Rhine, Ph.D., although no such power is allowed under state law.
District 3 representative Toby Payne, who represents Sedona and the Verde Valley, was the sole dissenting vote. Board members Ray Sigafoos and Chris Kuknyo, who voted in support of the resolution, did so as one of their final actions as members; Sigafoos was defeated in his reelection bid on Nov. 5 by William Kiel, while Kuknyo was elected as Yavapai County District 4 supervisor.
The resolution by which the board attempted to curtail its own powers also included new code of conduct requirements for board members, which appear to be incompatible with the First Amendment to the U.S. Constitution.
Lines of Authority
“The governing board has delegated the day-to-day management of Yavapai College to the president,” the new code of conduct for the governing board attached to the resolution declared. “Therefore, the board acknowledges the difference between governance and administration of the college. The authority for overall college administration, to initiate policy recommendations, administer academic programs, conduct college business, direct staff and faculty and implement board actions is delegated to the college president. Yavapai College District Governing members will respect the delegation of authority to the president.”
“The Yavapai County Community College District Governing Board … delegates to the college president all of its authority to operate the college,” the text of the resolution stated. “All authority and accountability of staff, as far as the board is concerned, shall be considered the authority and accountability of the president.”
The resolution cites Arizona Revised Statutes §15-1444(A)(6) and (B)(4). ARS §15-1444, which specifies the powers and responsibilities of the board, provides that the district board, not the college president, shall “maintain each community college under its jurisdiction”; “adopt policies in a public forum”; “visit each community college under its jurisdiction and examine carefully into its management”; employ “a president or presidents … and such other officers and employees it deems necessary”; and “remove any officer or employee if in its judgment the interests of education in this state require the removal.”
ARS §15-1444 (A)(6) provides that the board may hire a president, but does not permit the delegation of the board’s authority to the president.
The only activities the board is permitted to delegate to the college president, per ARS §15-1444(B)(2) and (B)(4), are entering into leases and contracts, and the law further specifies that “any delegation of authority under this paragraph may be rescinded by the district board at any time in whole or in part.”
ARS Title 15 does not allow the delegation of any other authority to the college president, nor does it establish any other statutory role for the president.
“The board provides visible public support for the president, does not undermine his/her authority and counters misinformed public criticism,” the new code of conduct continued. “The board is responsible for creating and maintaining a spirit of cooperation and a mutually supportive relationship with its president … Once the board has decided on a policy or position, each board member must be prepared to honor the board’s decision … the board understands that the president is the primary contact with the college community and does not publicly criticize the president.”
The resolution also stated that the YCC president is permitted to refuse any requests for information by board members that the president regards as a waste of staff time or as being “disruptive.”
Former YCC board member Bob Oliphant described the decision as “a move that appears calculated to consolidate power and prevent scrutiny” and more briefly as a “preemptive power grab.”
“The resolution highlights the administration’s fear of public accountability,” Oliphant stated. “College leadership’s urgency in pushing this resolution stems from the impending arrival of two new governing board members in January. These incoming members could disrupt the administration’s longstanding dominance over board decisions.”
First Amendment
In addition to circumscribing the powers of the board in a way not permitted by state law, Rhine’s resolution also purported to limit board and staff members’ freedom of speech.
“Under no circumstances should an individual board member direct or contact by any means a staff member concerning a college or community issue,” the new code of conduct stated. “Board members will refer all of their concerns and constituent concerns via email to the president to resolve or answer.”
“Board members do not speak to the press in any way that reflects negatively on their colleagues or the college,” the code added.
“Prior restraints — judicial orders that proactively prohibit people from talking, rather than allowing for after-the-fact litigation over what was said — are presumptively unconstitutional,” media law specialist Isabel Farhi wrote for Yale Law School’s “Case Disclosed” blog in 2017, citing Nebraska Press Association v. Stuart.
“Over the past three decades, the National Labor Relations Board has ordered employers to rescind ‘media gag orders’ more than a dozen times,” the Brecher Center for Freedom of Information stated in a 2019 report. “Policies restricting workers from discussing their work with journalists regularly are struck down as unlawful.”
While few legal decisions have yet focused on the free speech rights of college board members vis-a-vis administrators, the free speech rights of college staff with regard to college administration have been extensively litigated.
The U.S. Supreme Court ruled in the 2014 case of Lane v. Franks, modifying its 2006 ruling in Garcetti v. Ceballos, that employers may only seek to limit employee speech when such speech is “ordinarily within the scope of [the] employee’s duties, not [when] it merely concerns those duties.” U.S. circuit courts, including the Ninth Circuit responsible for Arizona, have subsequently issued rulings clarifying the Garcetti decision’s ambiguous relationship to academic freedom.
“The Ninth Circuit has adopted an academic exception to Garcetti that treats faculty speech related to teaching or scholarship as though it were speech made by a citizen on a matter of public concern,” legal scholar Nora Anne Devlin wrote in a 2023 comprehensive review of faculty free speech cases. “Ninth Circuit precedent for faculty speech cases is generally based on the case of Demers v. Austin,” in which the court found a journalism professor’s public discussion of proposed organizational changes at the university at which he was employed to be protected by the First Amendment because it “addressed a matter of public concern.”
Similarly, in Scannell v. Pitt, the Ninth Circuit concluded that critiques of college policy by a professor published in the college’s student newspaper, as a result of which the professor was dismissed, were protected comment on matters of public concern that did not injure the school’s legitimate interests. “The court found that the right to be free of institutional retaliation by government officials based on that individual’s constitutionally protected speech was clearly established by at least 1997 in the Ninth Circuit,” Devlin noted.
Devlin also cited Hodge v. Antelope Valley Community College District, in which an instructor was threatened with disciplinary action by college administration for proposing a lesson plan that administrators considered culturally disrespectful: “The court found that both the lecture observed by the dean and the proposed lesson plan addressed matters of public concern. Likewise, the court agreed with Hodges that his interest in speaking outweighed the defendants’ interest in regulating his speech.”
Furthermore, even if First Amendment protections did not apply to board members’ speech prima facie, ARS §15-1443(C) provides that “members of the district board are immune from personal liability with respect to all acts done and actions taken in good faith within the scope of their authority during duly constituted regular and special meetings.”
“These provisions crystallize the administration’s intent to silence opposition and maintain its dominance, even at the expense of democratic governance,” Oliphant wrote.
