OnaCharger

they are if a specific pupil or staff member is being discussed (for any reason) and if there is a conflict of pecuniary interests that is greater than that of the average staff member?

You are right that a staff member is only deemed by law to have personal pecuniary interest if their interest is "greater than the interest of the generality of those paid to work at the school". There is no requirement for SGs to withdraw if a pupil is being discussed, and you only have to withdraw when a specific staff member is being discussed if the discussion concerns their "pay or performance appraisal".

OnaCharger

Is there any other type of conflict of interests? Specific staff might leave if there was a personal relationship (friendship) that might cloud their judgement, but that would apply to any governor and wouldn't require all staff to exit I assume? Given the following hypothetical scenario should they exit? Governors are discussing a possible restructuring of part of the SLT. Governors who are SLT should leave, but should non-SLT governors? Their interest in the matter would be on the same level as the average staff member, but I feel I might be missing something? Like I asked earlier, is there a type of interest this falls under or is this a recognised 'special case' Thanks for any advice from Stephen or others

There is also a more general conflict of interest provison (paragraph 14 of the Procedures Regulations) which says that you have to leave the meeting if "there may be a conflict between the interests of [a governor] and the interests of the governing body", and which goes on to say that if there is a disagreement about whether there is a conflict on interest then the governing body decides whether the governor concerned has to leave the meeting. As montiagh says, this has been used very inappropriately by some GBs to exclude SGs for no good reason. Personally don't think SGs should have to leave automatically in the scenario you describe, although it would depend a lot on the speific circumstances. However the problem with concepts like "may have a conflict of interest" is they are notoriously woolly and subjective so it's not possible to say the GB was obviously wrong to make the decision it did.

 Thanks to both Montiagh and Rott Weiler for your help.

This hypothetical situation is more about future decisions than past, I just want to make sure that I have as many facts to hand. It has been indicated that SG's will be asked to leave at the next meeting when this subject comes up. Like you state rather than just leave quietly the SG's can open it to the other governors to decide if its a conflict or not.

I've looked at the procedures regulations and as you indicate, paragraph 14 is key. Can I quiz you guys a little further? Part 2 of this:-

(2) Subject to paragraph (4), where—

(a)in relation to any matter there may be a conflict between the interests of a relevant person and the interests of the governing body, or

(b)a fair hearing is required and there is any reasonable doubt about a relevant person’s ability to act impartially in relation to any matter

Both of these are unhelpfully vague, but would both be subject though DFE's advice that SG's interest or impartiallity is a comparitive value to the average staff member? IE on a vote of updating the staff toilet, I am interested and not impartial, but no more than any other staff member so allowed to discuss and vote.

Thanks for the clarification of discussions over staff members. Apologies to ask for more, but is there any law / official advice specifying that this is the extent of what we cannot be party too? Like you indicate, there is a lot of misconceptions out there and there's nothing like an official document to burst those bubbles!

This is a surprisingly common question from both other governors and staff governors. In Regulations there are very few issues which staff governors are excluded from undertaking simply because they are a member of staff.

• Staff governors may not be appointed chair or vice chair of the governing body
• Staff governors may not sit on the headteacher's performance appraisal panel
• Staff governors (other than the headteacher) must withdraw from a meeting where the pay or performance appraisal of any person employed to work at the school

Staff governors may be more likely to be affected by the general rules on pecuniary interest than other governors, but simply being a staff member does not automatically exclude them - the Regulations state that conflicts of interest do not occur where a individual's interest in a matter ‘is no greater than the interest of the generality of those paid to work at the school'.

Governing bodies, headteachers and local authorities do sometimes think that staff governors should not be involved in staffing matters or finance, but there is no legal basis beyond those circumstances set out in Regulations (paraphrased above) to do so. Staff governors are first and foremost governors and if a governing body places further restrictions on what they can and can't be involved in, it may deprive itself of valuable advice and information. There is for example, no restriction on a staff governor forming part of the recruitment panel for a new headteacher.

As you say, if the staff governor could benefit personally from a change in the staffing (for example) an Assistant Head who is a staff governor should not be party to discussion about the appointment of a deputy head because they may wish to apply for the role, but a member of the non-teaching staff should not have any greater interest than any other governor and should not automatically be excluded.

Stephen Adamson

The discussion so far is fine, but of limited practical use. The real question is what should staff governors do if the chair unreasonably excludes them from the meeting.

So let's get to the heart of the issue...

My suggestion and I'm open to correction is 

1. staff governors should insist on a discussion on the record within the full GB (with themsleves contributing) specifically on the question each time an attempt is made to exclude staff governors. Stagg governors should make it clear that the legality of any subsequent discussion/discussion with the staff governors excluded will be open to challenge.And if the governors are found to have acted unreasonably, then individual governors face the potential of being personally surcharged for any losses. This is public money and should be accountable. Staff governors should call on the parent governors (who are elected to the GB) to uphold full accountability of the GB and to vote against staff governros being exlcuded. Staff governrors also have a viote as equal governors.
2. Staff governors should insist on a recorded vote on the decision to exclude them governors , so that those governors supoporting exclusion can be identified.
3. They should insist on the union giving proper legal written advice on the legality of the subsequent decision and whether the GB acted beyond their powers and also contact the LEA if a LEA school.

Stephen_Adamson

Staff governors (other than the headteacher) must withdraw from a meeting where the pay or performance appraisal of any person employed to work at the school

I admit to being completely ignorant in these issues but, out of curiousity wouldn't discussions involving the re-structuring of the SLT involve discussions of the pay people employed to work at the school?

ivor_Monkey

The discussion so far is fine, but of limited practical use. The real question is what should staff governors do if the chair unreasonably excludes them from the meeting.

So let's get to the heart of the issue...

My suggestion and I'm open to correction is 

1. staff governors should insist on a discussion on the record within the full GB (with themsleves contributing) specifically on the question each time an attempt is made to exclude staff governors. Stagg governors should make it clear that the legality of any subsequent discussion/discussion with the staff governors excluded will be open to challenge.And if the governors are found to have acted unreasonably, then individual governors face the potential of being personally surcharged for any losses. This is public money and should be accountable. Staff governors should call on the parent governors (who are elected to the GB) to uphold full accountability of the GB and to vote against staff governros being exlcuded. Staff governrors also have a viote as equal governors.
2. Staff governors should insist on a recorded vote on the decision to exclude them governors , so that those governors supoporting exclusion can be identified.
3. They should insist on the union giving proper legal written advice on the legality of the subsequent decision and whether the GB acted beyond their powers and also contact the LEA if a LEA school

That's a very aggressive and confrontational approach without any justification offered for why it would be appropriate. You seem to have started from the assumption that asking the SGs to leave because they have a conflict of interest in a discussion of SLT restructuring is automatically unreasonable but there's no grounds for that. We don't know enough about what's being discussed to know whether it's reasonable or not to ask SGs to withdraw in these particular circumstances, it might be entirely reasonable for all we know. However, the law provides a mechanism for deciding whether there is a conflict of interest, by the other members of the GB voting on the issue. If the GB does that and decides SGs do have a conflict of interest then the law has been complied with. That's the GB acting within its powers, not "beyond" them. It's irrelevant whether the SGs agree and it's hard to imiagine what question mark there could be about "the legality of the subsequent decision" - what did you have in mind? What grounds for "challenging" the GB's decison to exclude SGs do you envisage if the GB has followed the steps in Regulation 14 of the Procedures Regulations? And where would it be challenged? In what circumstances do you envisage that "individual governors face the potential of being personally surcharged for any losses"? Even if you could establish that the GB acted beyond its powers - which seems unlikely if it's followed Regulation 14 - individual governors still wouldn't be personally liable for any losses (and anyway what financial losses could arise from a SLT restructuring?).  For the governing body to be personally liable you'd have to prove that each and every individual governor had acted dishonestly and in bad faith, which seems pretty unlikely, to put it mildly. 

Crowbob

I admit to being completely ignorant in these issues but, out of curiousity wouldn't discussions involving the re-structuring of the SLT involve discussions of the pay people employed to work at the school?

That doesn't seem very likely Crowbob. All the discussions I've ever been involved in about SLT restructuring are about which SLT member will be responsible for what, how the thing will work. It's never involved having a discussion about which leadership point each SLT member was on. I wouldn't expect the SLT member's pay to change because you had restructured their responsibilities? What did you have in mind?

Thanks Rott Weiler, I trust your experience. I am not quite sure what I was thinking!

I guess I wasn't envisaging "re-jigging" of existing roles but was thinking about things like post-academy re-structuring where you have multiple schools. This can involve significant changes in responsibilities that may justify changes to pay. Or perhaps "efficiency" savings where the NUMBER of SLT is reduced. 

Crowbob

I guess I wasn't envisaging "re-jigging" of existing roles but was thinking about things like post-academy re-structuring where you have multiple schools. This can involve significant changes in responsibilities that may justify changes to pay. Or perhaps "efficiency" savings where the NUMBER of SLT is reduced. 

I see what you mean. In the former case I can see that it might lead to new roles with new pay ranges, so if you discussed both the structure and individuals pay at the same time then SGs would be legally required to withdraw. It's an unlikely scenario though. Much more likely is that the structure plan would be discussed in general terms and in terms of roles rather then individuals and once those roles were filled the question of pay/spine points for the individual appointed to the roles would be discussed separately in the Pay Committee or similar, from which SGs would be excluded.

If you were reducing the size of the SLT it would depend on specific circumstances whether any SG had a pecuniary interest. If any of the SGs was an SLT member whose post might be abolished then that SG would have a pecuniary interest and must withdraw. Whether all SGs would have a potential conflcit of interest in that example takes us straight back to post #1 in this thread!

Posted by: Rott Weiler 10/04/2012 at 16:37

Reply

"That's a very aggressive and confrontational approach without any justification offered for why it would be appropriate. You seem to have started from the assumption that asking the SGs to leave because they have a conflict of interest in a discussion of SLT restructuring is automatically unreasonable but there's no grounds for that."

**

On the contrary, you seem to have missed the key point and created your own strawman in the process.

Of course, if there is an unambigious conflict of interest, (as you assume) then the relevant governor, (whoever it is) should not be party to the decision.  That is quite obvious and should apply to all governors, not just SGs. But that isn't the crucial point. The key point that I was trying to address was what should happen if the chair decides that SG should be excluded from the meeting, but the SGs do not agree that there is a justifiable cause for their exclusion. Now that is where things get interesting.

In that situation there is clearly a disagreement on the GB. The SG (as equal governors) would be right to challnge the reasoning for the forced exclusion. If they don't challenge it, my guess is that they will probbaly find themselves repeatedly and increasingly excluded from various key decisions. My suggestions above indicated that I do not believe SGs should meekly leave a GB. The decision to exlcude them should be properly aired, justified and should be not done without a proper debate and recorded vote. You on the othe rhand seem to suggest that SGs should leave whenever the chair decides...

As regards scenarios, there are lots of cases why a chair of governors could mistakenly believe he has the power to exclude SGs.

 That misapprehension should be challenged and corrected. Claiming (as you do) a simple "conflict of interest" can determine the reasonableness of the issue may not help your argument much either. For example, a chair may decide that a decision to become an academy requires the SGs to leave because of a conflcit of interest. (Clearly becoming an academy has the potential for the GB to reduce agreed terms and conditions, so (using your logic) the SGs have a conflict of interest and should be excluded).

 My view is that exclusion in that case would be unacceptable and given the legal consequences that could flow from that decision, I would like governors to recognise that acting unreasonably and excluding SGs could leave them vulerable.If GBs had to have recorded debates and votes ond ecisions to exlcude SGs, then perhaps there would be fewer cases of SGs being excluded.

I'm just left puzzled by your post now ivor_Monkey. Why are you talking about the chair of governors excluding SGs? OnaCharger never suggested that was happening and neither has anyone else who has replied so far, least of all me. I suggest you re-read my replies, I have consistently said that Regulation 14 and how you interpret it is the issue and Regulation 14 (which OnaCharger has helpfully quoted in full earlier) is completely clear that it the power to exclude for conflict of interest lies with the GB as a whole, not with the chair. Quite how you arrive at the conclusion that I think "SGs should leave whenever the chair decides" I cannot imagine. It's more or less the complete opposite of what I said. Of course the debate in the GB about whether SGs have a conflict of interest should be an open debate which SGs participate in, no-one has suggested otherwise, but I still don't understand what you mean by "...given the legal consequences that could flow from that decision [to exclude SGs], I would like governors to recognise that acting unreasonably and excluding SGs could leave them vulerable" and you still haven't explained what you mean by that. What legal consequnces? Vulnerable to what?

ivor_Monkey

Claiming (as you do) a simple "conflict of interest" can determine the reasonableness of the issue may not help your argument much either....Clearly becoming an academy has the potential for the GB to reduce agreed terms and conditions, so (using your logic) the SGs have a conflict of interest and should be excluded

I don't know how you read that into my post and I make no such claim. I've no idea whether there is a conflict of interest in OnaCharger's case and your example bears no relationship to anything I have said. I cannot imagine any circumstances where SGs should be excluded from the decision on whether to become an academy.

ivor I don't think RW advocated staff governors being routinely excluded. What s/he said was

Rott Weiler

As montiagh says, this has been used very inappropriately by some GBs to exclude SGs for no good reason. Personally don't think SGs should have to leave automatically in the scenario you describe, although it would depend a lot on the speific circumstances.

I would agree with IvorMonkey in most of what he posted. I am not an SG, but have experienced a Chair who routinely tries to exclude SG's for all manner of subjects. The SG's being too timid to disagree. I have had to correct the chair and clerk on a number of occassions as to their unilateral power to exclude as they see it. We never discuss as a full GB whether to exlude.

To give RW an example. We needed to appoint a new head teacher. A meeting of the full GB was arranged before that meeting occurred the chair instructed the clueless clerk to write to the SG's and exclude them from the meeting that was to chose a panel (a clerk doing such an action in itself is illegal). I intervened and outlined very vigourously with the chair that what he was doing was illegal. Eventually the chair gave in and apologised to the SG members and allowed the SG members to attend. It did however not stop the chair is asserting his authority on the evening by ensuring that SG governors were not panel members. Now if you illegally disenfranchise governors, then you may well run the risk of a legal challenge to the decisions taken by the GB. For instance if in the situation I have mentioned a losing candidate for the HT post was to have found out (if the chair had got away with it) that SG members were excluded from a meeting to discuss the formation of a panel, then that candidate may well have a valid case to challenge the decision.

That is why it is vitally important that GB's run their goverance as per the legislation and guidance.  

RW as regards the  

montiagh

 I .... have experienced a Chair who routinely tries to exclude SG's for all manner of subjects.

I think we need a new thread on 'Powers of Chair to exclude Staff Governors' where you and I and ivor can all agree with each other that chairs have no authority to do any such thing and discuss how to tackle chairs who exceed their powers. As it is OnaCharger's thread has been diverted into discussing something that has little to do with what OnaCharger wanted advice about, which was about the powers of the governing body as a whole to exclude staff governors not about chairs acting improperly.

montiagh

For instance if in the situation I have mentioned a losing candidate for the HT post was to have found out (if the chair had got away with it) that SG members were excluded from a meeting to discuss the formation of a panel, then that candidate may well have a valid case to challenge the decision.

Is this possible given Procedures Regulation 24 (3) (b)? I'd have thought not.

RW - I would agree that this post has wandered slightly and the power of a chair is a separate subject. I would say though that the chair does yield the most influence!

As regards 24 (3) (b) The proceedings of a committee shall not be invalidated by any defect in the appontment of any member of the committee - I would depart from your analysis of this in that we are talking about the Ultra Vires act of precluding members from a committee and it is that scenario that could be challenged if indeed any one ever would.

Montiagh, thanks  for your timely contribution.

RW, truly I'm glad that you are moving towards addressing the crucial point: chairs exceedings their powers and unjustly excluding SGs. there is no need to start another thread because the OP identified the general issue and referred to one hypothetical situation.

I simply wished to address that general issue directly using first principles.My impression of your comments were that you wished to avoid addressing this at all costs.

But now that we are closer together on the key issue, I would love to hear suggestions (RW?) for how governors, esp SGs, should respond when a chair unjustly instructs SGs to leave. Could those suggestions also please include options for responding to a chair that persists in trying to unjustly exclude SGs.

ivor_Monkey, if you want a discussion on chairs abusing their powers start a new thread on that subject, don't hijack someone else's!

Rott W

..As suspected, you are trying to evade the issue (again).

As regards me not addressing the OP comment I direct you to the opening sentence of the OP:

"Dear Stephen, Could you provide any clarification over when staff governors should be excluded from discussions in either full governing body or committee meetings."

That is what I'm discussing. But you are trying to evade the meat of the issue. You have even tried to deny a problem exists.

Is all this huffing and puffing on your part because you are incapable of answering my previous questions? I thought so.

ivor_Monkey

Is all this huffing and puffing on your part because you are incapable of answering my previous questions? I thought so.

How that reminds me of another well-known poster ...