[Federal Register Volume 61, Number 231 (Friday, November 29, 1996)]
[Rules and Regulations]
[Pages 60562-60565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30383]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 69


School Boards for Department of Defense Domestic Dependent 
Elementary and Secondary Schools

AGENCY: Office of the Secretary, DoD.

ACTION: Final rule.

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SUMMARY: This final rule provides guidance to the Department of Defense 
(DoD) Domestic Dependent Elementary and Secondary Schools (DDESS) 
implementing the National Defense Authorization Act which provides for 
elected School Boards in Dod DDESS. Pursuant to this legislation, 
school boards in DoD DDESS may participate in the development and 
oversight of fiscal, personnel, and educational policies, procedures, 
and programs for these schools. This final rule provides guidance 
outlining the responsibilities, operating procedures, composition, 
electorate and election procedures for the DoD DDESS school boards.

EFFECTIVE DATE: November 29, 1996.

FOR FURTHER INFORMATION CONTACT:
Hector O. Nevarez, (703) 696-4373.

SUPPLEMENTARY INFORMATION: Because of the importance of providing 
guidance for elected school boards, this final rule is being issued. 
The Office of Management and Budget has determined that this is a 
significant regulatory action. However, since this

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rule is not ``economically significant'' as defined in Executive Order 
12866, the extensive analysis report is not required, and the rule 
complies with the requirements of the Executive Order. It has been 
determined that this rule is not subject to Public Law 96-354, 
``Regulatory Flexibility Act'' (5 U.S.C. 601) because it does not have 
a significant economic impact on a substantial number of small 
entities. The primary effect of this rule will be a reduction in 
administrative costs and other burdens resulting from the 
simplification and clarification of policies. It has been determined 
that Public Law 109-13, ``Paperwork Reduction Act 1995'' (44 U.S.C. 
Chapter 44), does not apply because the rule does not impose any 
reporting or recordkeeping requirements on persons or entities outside 
the Federal Government.
    All significant comments received following publication of the 
interim final rule were considered and changes made as appropriate. 
Many comments concerned allowing school boards more autonomy in 
determining terms of office for school board members and the number of 
consecutive terms members may serve. The language of section 69.6(c)(2) 
has been changed to allow school boards to make these determinations 
within established parameters.
    Several comments addressed problems with holding school board 
elections to coincide with local elections and recommended that school 
boards determine the timing of elections to meet local situations, 
particularly with respect to military transfers. Section 69.6(c)(4) was 
modified to allow school boards to determine the schedule for regular 
elections. As 10 U.S.C. 2164 requires elected school boards and makes 
no provision for filling midterm vacancies through appointment, no 
change was made to section 69.6(c)(3). Special elections must be held 
to fill such vacancies.

List of Subjects in 32 CFR Part 69

    Elementary and secondary education, Government employees, Military 
personnel.
    Accordingly, Title 32, Chapter I, Subchapter C is revising Part 69 
to read as follows:

PART 69--SCHOOL BOARDS FOR DEPARTMENT OF DEFENSE DOMESTIC DEPENDENT 
ELEMENTARY AND SECONDARY SCHOOLS

Sec.
69.1  Purpose.
69.2  Applicability and scope.
69.3  Definitions.
69.4  Policy.
69.5  Responsibilities.
69.6  Procedures.

    Authority: 10 U.S.C. 2164.


Sec. 69.1  Purpose.

    This part prescribes policies and procedures for the establishment 
and operation of elected School Boards for schools operated by the 
Department of Defense (DoD) under 10 U.S.C. 2164, 32 CFR part 345, and 
Public Law 92-463.


Sec. 69.2  Applicability and scope.

    This part applies to:
    (a) The Office of the Secretary of Defense (OSD), the Military 
Departments, the Coast Guard when operating as a service of the 
Department of the Navy or by agreement between DoD and the Department 
of Transportation, the Chairman of the Joint Chiefs of Staff, the 
Unified and Specified Combatant Commands, the Inspector General of the 
Department of Defense, the Uniformed Services University of the Health 
Sciences, the Defense Agencies, and the DoD Field Activities.
    (b) The schools (prekindergarten through grade 12) operated by the 
DoD under 10 U.S.C. 2164 and 32 CFR part 345 within the continental 
United States, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American 
Samoa, the Northern Mariana Islands, and the Virgin Islands, known as 
DoD DDESS Arrangements.
    (c) This part does not apply to elected school boards established 
under state or local law for DoD DDESS special arrangements.


Sec. 69.3  Definitions.

    (a) Arrangements. Actions taken by the Secretary of Defense to 
provide a free public education to dependent children under 10 U.S.C. 
2164 through DoD DDESS arrangements or DoD DDESS special arrangements:
    (1) DDESS arrangement. A school operated by the Department of 
Defense under 10 U.S.C. 2164 and 32 CFR 345 to provide a free public 
education for eligible children.
    (2) DDESS special arrangement. An agreement, under 10 U.S.C. 2164, 
between the Secretary of Defense, or designee, and a local public 
education agency whereby a school or a school system operated by the 
local public education agency provides educational services to eligible 
dependent children of U.S. military personnel and federally employed 
civilian personnel. Arrangements result in partial or total Federal 
funding to the local public education agency for the educational 
services provided.
    (b) Parent. The biological father or mother of a child when 
parental rights have not been legally terminated; a person who, by 
order of a court of competent jurisdiction, has been declared the 
father or mother of a child by adoption; the legal guardian of a child; 
or a person in whose household a child resides, provided that such 
person stands in loco parentis to that child and contributes at least 
one-half of the child's support.


Sec. 69.4  Policy.

    (a) Each DoD DDESS arrangement shall have an elected school board, 
established and operated in accordance with this part and other 
pertinent guidance.
    (b) Because members of DoD DDESS elected school boards are not 
officers or employees of the United States appointed under the 
Appointments Clause of the United States Constitution (Art. II, Sec. 2, 
Cl. 2), they may not exercise discretionary governmental authority, 
such as the taking of personnel actions or the establishment of 
governmental policies. This part clarifies the role of school boards in 
the development and oversight of fiscal, personnel, and educational 
policies, procedures, and programs for DoD DDESS arrangements, subject 
to these constitutional limitations.
    (c) The DoD DDESS chain of command for matters relating to school 
arrangements operated under 10 U.S.C. 2164 and 32 CFR part 345 shall be 
from the Director, DoD DDESS, to the Superintendent of each school 
arrangement. The Superintendent will inform the school board of all 
matters affecting the operation of the local school arrangement. Direct 
liaison among the school board, the Director, and the Superintendent is 
authorized for all matters pertaining to the local school arrangement.


Sec. 69.5  Responsibilities.

    The Assistant Secretary of Defense for Force Management Policy (ASD 
(FMP)), under the Under Secretary of Defense for Personnel and 
Readiness, shall:
    (a) Make the final decision on all formal appeals to directives and 
other guidance submitted by the school board or Superintendent.
    (b) Ensure the Director, DoD DDESS shall:
    (1) Ensure the establishment of elected school boards in DoD DDESS 
arrangements.
    (2) Monitor compliance by the Superintendent and school boards with 
applicable statutory and regulatory requirements, and this part. In the 
event of suspected noncompliance, the

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Director, DoD DDESS, shall take appropriate action, which will include 
notification of the Superintendent and the school board president of 
the affected DoD DDESS arrangement.
    (3) Determine when the actions of a school board conflict with an 
applicable statute, regulation, or other guidance or when there is a 
conflict in the views of the school board and the Superintendent. When 
such conflicts occur, the Director, DoD DDESS, shall assist the 
Superintendent and the school board in resolving them or direct that 
such actions be discontinued. Such disapprovals must be in writing to 
the school board and the Superintendent concerned and shall state the 
specific supporting reason or reasons.
    (c) Ensure the school board for DoD DDESS arrangements shall:
    (1) Participate in the development and oversight of fiscal, 
personnel, and educational policies, procedures, and programs for the 
DoD DDESS arrangement concerned, consistent with this part.
    (2) Approve agendas and prepare minutes for school board meetings. 
A copy of the approved minutes of school board meetings shall be 
forwarded to the Director, DoD DDESS, within 10 working days after the 
date the minutes are approved.
    (3) Provide to the Director, DoD DDESS, names of applicants for a 
vacancy in the Superintendent's position after a recruitment has been 
accomplished. The school board shall submit to the Director, DoD DDESS, 
a list of all applicants based on its review of the applications and 
interviews (either in person or telephonically) of the applicants. The 
list of applicants will be accompanied by the recommended choice of the 
school board. The Director will select the Superintendent and will 
submit written notice with justification to the school board if the 
recommendation of the school board is not followed.
    (4) Prepare an annual written on-site review of the 
Superintendent's performance for consideration by the Director, DoD 
DDESS. The written review shall be based on critical elements 
recommended by the school board and Superintendent and approved by the 
Director, DoD DDESS. The school board's review will be an official 
attachment to the Superintendent's appraisal.
    (5) Participate in the development of the school system's budget 
for submission to the Director, DoD DDESS, for his or her approval as 
endorsed by the school board; and participate in the oversight of the 
approved budget, in conjunction with the Superintendent, as appropriate 
for operation of the school arrangement.
    (6) Invite the Superintendent or designee to attend all school 
board meetings.
    (7) Provide counsel to the Superintendent on the operation of the 
school and the implementation of the approved budget.
    (8) Channel communications with school employees to the DoD DDESS 
Superintendent. Refer all applications, complaints, and other 
communications, oral or written, to the DoD DDESS Arrangement 
Superintendents.
    (9) Participate in the development of school policies, rules, and 
regulations, in conjunction with the Superintendent, and recommend 
which policies shall be reflected in the School Policy Manual. At a 
minimum, the Policy Manual, which shall be issued by the 
Superintendent, shall include following:
    (i) A statement of the school philosophy.
    (ii) The role and responsibilities of school administrative and 
educational personnel.
    (iii) Provisions for promulgation of an annual school calendar.
    (iv) Provisions on instructional services, including policies for 
development and adoption of curriculum and textbooks.
    (v) Regulations affecting students, including attendance, grading, 
promotion, retention, and graduation criteria, and the student code of 
rights, responsibilities, and conduct.
    (vi) School policy on community relations and noninstructional 
services, including maintenance and custodial services, food services, 
and student transportation.
    (vii) School policy and legal limits on financial operations, 
including accounting, disbursing, contracting, and procurement; 
personnel operations, including conditions of employment, and labor 
management regulations; and the processing of, and response to, 
complaints.
    (viii) Procedures providing for new school board member 
orientation.
    (ix) Any other matters determined by the school board and the 
superintendent to be necessary.
    (10) Under 10 U.S.C. 2164(b)(4)(B), prepare and submit formal 
appeals to directives and other guidance that in the view of the school 
board adversely impact the operation of the school system either 
through the operation and management of DoD DDESS or a specific DoD 
DDESS arrangement. Written formal appeals with justification and 
supporting documentation shall be submitted by the school board or 
Superintendent to ASD(FMP). The ASD(FMP) shall make the final decision 
on all formal appeals. The Director, Dod DDESS, will provide the 
appealing body written review of the findings relating to the merits of 
the appeal. Formal appeals will be handled expeditiously by all parties 
to minimize any adverse impact on the operation of the DoD DDESS 
system.
    (d) Ensure school board operating procedures are as follows:
    (1) The school board shall operate from a written agenda at all 
meetings. Matters not placed on the agenda before the start of the 
meeting, but approved by a majority of the school board present, may be 
considered at the ongoing meeting and added to the agenda at that time.
    (2) A majority of the total number of school board members 
authorized shall constitute a quorum.
    (3) School board meetings shall be conducted a minimum of 9 times a 
year. The school board President or designee will provide school board 
members timely notice of all meetings. All regularly scheduled school 
board meetings will be open to the public. Executive session meetings 
may be closed under 10 U.S.C. 2164(d)(6).
    (4) The school board shall not be bound in any way by any action or 
statement of an individual member or group of members of the board 
except when such action or statement is approved by a majority of the 
school board members during a school board meeting.
    (5) School board members are eligible for reimbursement for 
official travel in accordance with the DoD Joint Travel Regulations and 
guidance issued by the Director, DoD DDESS.
    (6) School board members may be removed by the ASD (FMP) for 
dereliction of duty, malfeasance, or other grounds for cause shown. The 
school board concerned may recommend such removal with a two-thirds 
majority vote. Before a member may be removed, the member shall be 
afforded due process, to include written notification of the basis for 
the action, review of the evidence or documentation considered by the 
school board, and an opportunity to respond to the allegations.


Sec. 69.6  Procedures.

    (a) Composition of school board. (1) The school board shall 
recommend to the Director, DoD DDESS, the number of elected school 
board voting members, which shall be not fewer than 3 and no more than 
9, depending upon local needs. The members of the school board shall 
select by majority vote of the total number of school board members

[[Page 60565]]

authorized at the beginning of each official school board term, one 
member to act as President and another to act as Vice President. The 
President and Vice President shall each serve for 1 year. The President 
shall preside over school board meetings and provide leadership for 
related activities and functions. The Vice President shall serve in the 
absence of the President. If the position of President is vacated for 
any reason, the Vice President shall be the President until the next 
regularly scheduled school board election. The resulting vacancy in the 
position of the Vice President shall be filled by the majority vote of 
all members of the incumbent board.
    (2) The DoD DDESS Arrangement Superintendent, or designee, shall 
serve as a non-voting observer to all school board meetings. The 
Installation Commander, or designee, shall convey command concerns to 
the school board and the Superintendent and keep the school board and 
the Superintendent informed of changes and other matters within the 
host installation that affect school expenditures or operations.
    (3) School board members may not receive compensation for their 
service on the school board.
    (4) Members of the school board may not have any financial interest 
in any company or organization doing business with the school system. 
Waivers to this restriction may be granted on a case-by-case basis by 
the Director, DoD DDESS, in coordination with the Office of General 
Counsel of the Department of Defense.
    (b) Electorate of the school board. The electorate for each school 
board seat shall be composed of parents of the students attending the 
school. Each member of the electorate shall have one vote.
    (c) Election of school board members. (1) To be elected as a member 
of the school board, an individual must be a resident of the military 
installation in which the DoD DDESS arrangement is located, or in the 
case of candidates for the Antilles Consolidated School System School 
Board, be the parent of an eligible child currently enrolled in the 
school system. Personnel employed by a DoD DDESS arrangement may not 
serve as school board members.
    (2) The board shall determine the term of office for elected 
members, not to exceed 3 years, and the limit on the number of terms, 
if any. If the board fails to set these terms by the first day of the 
first full month of the school year, the terms will be set at 3 years, 
with a maximum of 2 consecutive terms.
    (3) When there is a sufficient number of school board vacancies 
that result in not having a quorum, which is defined as a majority of 
seats authorized, a special election shall be called by the DoD DDESS 
Arrangement Superintendent or designee. A special election is an 
election that is held between the regularly scheduled annual school 
board election. The nomination and election procedures for a special 
election shall be the same as those of regularly scheduled school board 
elections. Individuals elected by special election shall serve until 
the next regularly scheduled school board election. Vacancies may occur 
due to the resignation, death, removal for cause, transfer, or 
disenrollment of a school board member's child(ren) from the DoD DDESS 
arrangement.
    (4) The board shall determine a schedule for regular elections. 
Parents shall have adequate notice of the time and place of the 
election. The election shall be by secret ballot. All votes must be 
cast in person at the time and place of the election. The candidate(s) 
receiving the greatest number of votes shall be elected as school board 
member(s).
    (5) Each candidate for school board membership must be nominated in 
writing by at least one member of the electorate to be represented by 
the candidate. Votes may be cast at the time of election for write-in 
candidates who have not filed a nomination petition if the write-in 
candidates otherwise are qualified to serve in the positions sought.
    (6) The election process shall provide staggered terms for board 
members; e.g., on the last day of the last month of each year, the term 
for some board members will expire.
    (7) The DoD DDESS Superintendent, in consultation with the school 
board, shall be responsible for developing the plans for nominating 
school board members and conducting the school board election and the 
special election process. The DoD DDESS Superintendent shall announce 
election results within 7 working days of the election.

    Dated: November 22, 1996.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-30383 Filed 11-27-96; 8:45 am]
BILLING CODE 5000-04-M