Orange County School Board Chair Teresa Jacobs posed a curious question this week as the board considered its mask mandate amid declining COVID-19 cases.
Might the Florida Legislature in its special session give Gov. Ron DeSantis the power to remove and replace board members for defying a state ban on mandates without parental opt-outs?
WMFE got some perspective on that issue from Scott Stephens, a professor of constitutional law at Stetson University.
STEPHENS: School boards in Florida are kind of unique in that the Florida Constitution has its own specific provision that empowers school boards directly. As a result, the employees of school boards are typically not considered to be executive branch employees. And the authority of school boards to operate, control and supervise the school districts is vested in the school boards by Article 9, Section 4 of the Florida Constitution. And so as a result, they have direct power from the constitution. They’re not subject to the inherent supervisory authority the governor has over all other members of the executive branch
WMFE: So the governor can’t simply replace school board members who don’t follow one of his policies?
The provision that I was talking about specifically requires the school board members in various counties to be elected and to be elected in nonpartisan elections. Now there is a provision in the in the article that applies to the governor's authority, where the governor has the power to suspend any county officer among other people. But there’s a list of reasons that the governor has to find in order to make that suspension. Those reasons are things like malfeasance, neglect of duty, drunkenness, incompetence, permanent inability to do the job or commission of a felony.
Now the governor in order to suspend one of these school board members under this provision — and there’s some case law authority suggests he wouldn’t have the authority to even use this provision because they’re not executive branch officials. But if you read the provision that says county officers, and I think that the the, I think that the school board members are county officers. So the governor would have the authority to suspend them if they did one of these things, and you have to identify which one and put it in lay it out into an executive order.
Once a person gets suspended, they’re kind of in limbo. The governor has the power to appoint their replacement while they’re suspended. In theory, the Senate is supposed to try the person and decide whether to remove them or reinstate them. But that could wait until the next legislative session, for example. So as a power play, the governor could in fact claim that an official did one of these things, one of these grounds for suspension issue an order suspending them and the rest of the governmental structure would probably go along at least until it was challenged in the courts.
The board chair in Orange County raised the concern that the special session the governor has called for could make it possible for [the governor] remove [board members] from office for maintaining the mask mandate. Is that a reasonable concern?
You know, it’s not impossible. I don’t think it would happen, because in order to do that, they would have to pass some kind of law that would be constitutional, that would somehow prevent the members of the local school boards from exercising the discretion that is committed to them by Article 9, Section 4 of the Florida Constitution. And I would have to see that law in order to be able to tell whether it had any hope of being held constitutional. But for the governor to do it now, to try to replace those people now, for failing to follow the mandates. He pretty clearly doesn’t have the authority to do that.
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